Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction. (b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. (c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. (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. (e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession. (f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser. (g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof. (h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and Visa Inc. delivered in accordance with the Companyterms of this Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of, of in any manner, manner all or any portion of the funds in the Escrow FundsAccount, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and no implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be liable except for any act done or omitted to be done in the performance absence of such duties and obligations as are specifically set forth in this Agreementgross negligence, bad faith or willful misconduct.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any Person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be 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 in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder and it 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 and instructions of such counsel.
(e) Except as provided hereinset forth in Section 8, the Escrow Agent shall have no duty as to the collection or protection of the funds in the Escrow Funds, Accounts or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of the funds in the Escrow Account and any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchasermeans of a disbursement to the Escrow Agent out of funds on deposit in the Escrow Account.
(g) Purchaser and the Company, jointly and severally, shall Visa Inc. agrees to reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expenseexpense (other than taxes of Escrow Agent with respect to fees received by Escrow Agent under this Agreement), including, without limitation, reasonable attorneys’ fees to fees, incurred in the extent incurred without fraud, absence of gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty twenty (3020) business days’ prior written notice of resignation to Purchaser the Visa Inc. and the CompanyVisa USA. Purchaser Visa Inc. and the Company Visa USA may at any time jointly remove the Escrow Agent by giving ten (10) business days prior days’ written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agentEscrow Agent, which shall be a bank or trust company having capital its principal executive offices in the United States of America and surplus assets in excess of at least $10 billion, billion shall be appointed designated by Purchaser Visa Inc. and Company Visa USA by a written instrument executed by Purchaser Visa Inc. and the Company Visa USA and delivered to the Escrow Agent and to such successor escrow agent Escrow Agent (the “Designation Notice”) and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor escrow agentEscrow Agent, without any further act, deed or conveyance, shall become vested with all right, title and interest succeed to all cash the rights and obligations with respect to the securities, money and property held hereunder by of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser Visa Inc., Visa USA and the Companysuccessor Escrow Agent, execute and deliver to such successor escrow agent all of its right, title and interest hereunder Escrow Agent the funds in and to the Escrow Account and all any other securities, money or property held by it pursuant to this Agreement within two (2) business days of its other rights hereunderthe predecessor Escrow Agent’s receipt of such Designation Notice. If no successor escrow agent Escrow Agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the funds in the Escrow Account and any other securities, money or property held by such Escrow Agent pursuant to this Agreement until the earlier of its receipt of designation of a successor escrow agentEscrow Agent, a joint written instructions instruction by Purchaser Visa Inc. and the Company and Visa USA or termination of this Agreement in accordance with its terms.
(i) The Escrow Agent does not have any interest in the funds in the Escrow Account deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from the funds in the Escrow Account shall be subject to withholding regulations then in force with respect to relevant taxes.
(j) The Escrow Agent is authorized, for any securities at any time held hereunder, to register such securities in the name of its nominees or the nominees of any securities depository, and such nominee(s) may sign the name of any of the parties hereto to whom or to which such securities belong and guarantee such signature in order to transfer securities or certify ownership thereof to tax or other governmental authorities.
Appears in 1 contract
Sources: Escrow Agreement (Visa Inc.)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from the Purchaser and the CompanyACC, the Escrow Agent shall not sell, transfer or otherwise dispose of, of in any manner, manner all or any portion of the Escrow FundsFund, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be 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 and in accordance with the opinion of such counsel.
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, Fund or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All ACC and the Purchaser shall each pay 50% of all such fees and expenses shall be paid by Purchaserexpenses, including any fees, costs and expenses, associated with liquidating investments in anticipation of a transfer contemplated in Section 4(e) or Section 4(f) hereof.
(g) Purchaser ACC and the Company, Purchaser shall jointly and severally, shall severally reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent ' fees, incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) Anything in this agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood for such loss or damage and regardless of the form of action.
(i) The Escrow Agent may at any time resign by giving thirty (30) business days’ 20 Business Days' prior written notice of resignation to Purchaser ACC and the CompanyPurchaser. Purchaser ACC and the Company Purchaser may at any time jointly remove the Escrow Agent by giving ten (10) business days prior Business Days' written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agentEscrow Agent, which shall be a bank or trust company having capital its principal executive offices in [state location] and surplus assets in excess of at least $10 [2 billion], and which shall be reasonably acceptable to ACC, shall be appointed by the Purchaser and Company by a written instrument executed by Purchaser ACC and the Company Purchaser and delivered to the Escrow Agent and to such successor escrow agent Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor escrow agentEscrow Agent, without any further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder by of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of ACC, the Purchaser and or the Companysuccessor Escrow Agent, execute and deliver to such successor escrow agent Escrow Agent all of its the right, title and interest hereunder in and to the Escrow Account Fund of such predecessor Escrow Agent and all of its other rights hereunderhereunder of such predecessor Escrow Agent. If no successor escrow agent Escrow Agent shall have been appointed within twenty (20) business days 20 Business Days of a notice of resignation by the Escrow Agent, the Escrow Agent’s 's sole responsibility shall thereafter be to hold the Escrow Account Fund until the earlier of its receipt of designation of a successor escrow agentEscrow Agent, a joint written instructions instruction by Purchaser ACC and the Company Purchaser and termination of this Agreement in accordance with its terms.
(j) Any corporation into which the Escrow Agent in its individual capacity may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent in its individual capacity shall be a party, or any corporation to which substantially all the corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under this Escrow Agreement without further act.
Appears in 1 contract
Sources: Escrow Agreement (Audiovox Corp)
Escrow Agent. (a) Except The Escrow Agent undertakes to perform only such duties as are expressly contemplated by set forth herein, and no implied duties or obligations shall be read into this Escrow Agreement or by joint written instructions from Purchaser and the Company, against the Escrow Agent shall not sellAgent. In acting hereunder, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for any act done, or omitted to be done, by it in the performance absence of gross negligence or willful misconduct.
(b) The Escrow Agent may act in reliance upon any writing or instrument or signature (including any facsimile) which it, in good faith, believes to be genuine, and may assume the validity and accuracy of any statement or assertion contained in such duties a writing or instrument and obligations as are specifically set forth may assume that any person purporting to give any writing, notice, advice or instruction in this Agreementconnection with the provisions hereof has been duly authorized to do so.
(c) In the performance of its duties hereunder, the The Escrow Agent shall be entitled to rely upon consult with legal counsel in the event that a question or dispute arises with regard to the construction of any documentof the provisions hereof, instrument or signature believed by it and shall incur no liability and shall be fully protected in acting in good faith to be genuine and signed by any party hereto in accordance with the advice or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy opinion of any statement contained in any such document or instrumentcounsel.
(d) The Escrow Agent shall not be liable for required to use its own funds in the performance of any error of its obligations or duties or the exercise of any of its rights or powers, and shall not be required to take any action which, in Escrow Agent’s sole and absolute judgment, could involve it in expense or any action takenliability, suffered or omitted other than those actions to be taken, hereunder except performed in the case ordinary course of business in its gross negligencecapacity as an escrow agent, bad faith or willful misconductunless furnished with security and indemnity which it deems, in its sole and absolute discretion, to be satisfactory.
(e) Except The Borrower hereby agrees to indemnify the Escrow Agent and hold it harmless from any and against all liabilities, losses, action, suits or proceedings at law or in equity and any other reasonable expenses, fees or charges of any character or nature, including, without limitation, attorney’s fees, which the Escrow Agent may incur or with which it may be threatened by reason of its acting as provided hereinthe Escrow Agent under this Escrow Agreement or arising out of the existence of the escrow created hereunder, except to the extent the same shall be caused by the Escrow Agent’s gross negligence or willful misconduct. In so agreeing to indemnify, hold harmless and reimburse the Escrow Agent, the Borrower intends thereby to cover all losses, claims, damages, liabilities and expenses, including reasonable costs of investigation, and counsel fees and disbursements, which may be imposed upon or incurred by the Escrow Agent in connection with its acceptance of appointment as the Escrow Agent hereunder or the performance of its duties hereunder, including any litigation arising from this Escrow Agreement. The terms of this paragraph (e) shall survive termination of this Escrow Agreement.
(f) The Escrow Agent may resign as Escrow Agent, and, upon its resignation, shall thereupon be discharged from any and all further duties and obligations under this Escrow Agreement by giving notice in writing of such resignation to the Borrower and the Administrative Agent, which notice shall specify a date upon which such resignation shall take effect. Upon the resignation of the Escrow Agent, the Borrower and the Administrative Agent shall, within sixty (60) business days after receiving the foregoing notice from the Escrow Agent, designate a substitute escrow agent (the “Substitute Escrow Agent”), which Substitute Escrow Agent shall, upon its designation and notice of such designation to the Escrow Agent, succeed to all of the rights, duties and obligations of the Escrow Agent hereunder. In the event the Borrower and the Administrative Agent shall not have delivered to the Escrow Agent a written designation of Substitute Escrow Agent within the aforementioned sixty (60) day period, together with the consent to such designation by the Substitute Escrow Agent, the Escrow Agent may apply to a court of competent jurisdiction to appoint a Substitute Escrow Agent, and the costs of obtaining such appointment shall be reimbursable from the Borrower.
(g) In the event the Escrow Agent receives conflicting instructions hereunder, the Escrow Agent shall act in accordance with the instructions of the Administrative Agent. In addition, the Escrow Agent shall have no duty as the right to institute a ▇▇▇▇ of interpleader in any court of competent jurisdiction to determine the collection or protection rights of the parties, and the parties shall pay all costs, expenses and disbursements in connection therewith, including attorneys’ fees. For purposes of this Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A parties hereto agree to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees submit to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part jurisdiction of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice courts of the commencement State of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofDelaware.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them Borrower shall pay to the Escrow Agent; provided that , without duplication, as compensation for its services hereunder fees in the amount set forth in Schedule 1 (or as otherwise separately agreed in writing between the Borrower and the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and ). In the event the Escrow Agent delivers renders any extraordinary services in connection with its duties as Escrow Agent at the Escrow Funds to such successor. If request of the Borrower, the Escrow Agent shall resign be entitled to additional reasonable compensation therefor.
(i) In the event that any party to this Escrow Agreement is unable to perform its obligations under the terms of this Escrow Agreement because of acts of God, strikes, equipment or transmission failure or damage reasonably beyond its control, or other cause reasonably beyond its control, such party shall not be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company and delivered liable for damages to the other parties for any damages resulting from such failure to perform or otherwise from such causes. Performance under this Escrow Agent and Agreement shall resume when the affected party is able 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agentperform substantially that party’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its termsduties.
Appears in 1 contract
Sources: Revolving Credit Agreement (Goldman Sachs Private Middle Market Credit II LLC)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) 9.01 The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or escrow agent thereof and shall not be required to investigate give security nor shall he be responsible for the truth acts, omissions, faults, errors, fraud, failure or accuracy misconduct of any statement contained agent whom he may reasonably employ in any the exercise of the powers conferred upon him hereunder, nor for loss occasioned by his own acts, omissions or defaults, unless such document acts, omissions or instrument.defaults constitute a breach of trust knowingly and intentionally committed by him;
(d) 9.02 The Escrow Agent escrow agent shall not be liable required to institute, defend, or intervene in any legal action to enforce the terms and conditions of the present Agreement until the escrow agent has been indemnified against all expenses and liabilities incurred and to be incurred by the escrow agent, including his own reasonable compensation as escrow agent;
9.03 The escrow agent may, at any time, consult with and retain the advice of such counsel it deems appropriate, and the escrow agent shall incur no liability whatsoever for any error of judgment, or any action taken, suffered or omitted taken by the escrow agent pursuant to be taken, hereunder except in the case of its gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, whether or not with advice of such counsel, unless the Escrow Agent escrow agent knowingly and intentionally commits a breach of trust;
9.04 The escrow agent shall receive a fee not be bound to pay any premiums nor to ensure that any policies of insurance are kept in the amount specified in Schedule A to this Agreement and force;
9.05 The parties shall be reimbursed upon request jointly and severally responsible to the escrow agent for prompt payment of all expensesfees, disbursements charges and advancesexpenses incurred by him, including reasonable fees of outside counsel, if any, those incurred by him in fulfilling his obligations or in defending himself against any claims made by it against him in connection with the preparation of this Agreement his duties hereunder including counsel fees, and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days the right to retain the shares and of a notice any moneys deposited with him, as security for the payment of resignation by the Escrow Agentall such fees, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser charges and the Company and termination of this Agreement in accordance with its terms.expenses;
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable for any action taken or omitted by it in good faith and its liability hereunder shall be limited to liability for gross negligence or willful misconduct on its part. The Company and the Purchaser agree to save harmless, indemnify and defend the Escrow Agent for, from and against their respective share of any loss, damage, liability, judgment, cost and expense whatsoever, by reason of, or on account of, any misrepresentation made to it or its status or activities as Escrow Agent under this Agreement except for any loss, damage, liability, judgment, cost or expense resulting from gross negligence or willful misconduct on the performance part of such duties and obligations as are specifically set forth in the Escrow Agent. The Escrow Agent shall not be responsible for any failure or inability of any of the parties to perform or comply with the provisions of this Agreement.
(c) , or the agreements delivered in connection herewith. In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely in good faith upon any documentdocument (including facsimile transmitted copies of documents), instrument or signature believed by it in good faith to be genuine and to be signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume in good faith that any person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so. Each party hereto acknowledges that (a) the Escrow Agent is not acting as legal counsel to such party in any manner or respect in connection with the transactions contemplated by this Agreement, and (b) the Escrow Agent is serving as an accommodation to the parties hereto. Each party further acknowledges that the Escrow Agent has acted, and acts, as legal counsel in certain matter to ▇.▇. ▇▇▇▇▇▇ & Co., Inc. ("▇▇▇▇▇▇"). It is understood and further agreed that the Escrow Agent shall:
(a) be under no duty to enforce payment of any subscription that is to be paid to and held by it hereunder;
(b) promptly notify the Purchaser and the Company of any discrepancy between the amounts set forth on any statement delivered by the Purchaser and/or the Company and the sum or sums delivered to it therewith;
(c) be under no duty to accept funds, checks, drafts or instruments for the payment of money from anyone other than the Company or the Purchaser, or to give any receipt therefor except to the Company or the Purchaser, with a copy in each case to the Company;
(d) The Escrow Agent be protected in acting upon any notice, request, certificate, approval, consent or other paper reasonably believed by it to be genuine and to be signed by the proper party or parties (including, but not limited to, copies of documents transmitted by facsimile);
(e) be permitted to consult with counsel of its choice, and shall not be liable for any error of judgment, or any action taken, suffered suffered, or omitted to be taken, hereunder except in the case of its gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection accordance with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement advice of such claim. In no event shall Purchaser or the Company be liable under counsel; provided, however, that nothing in this indemnity for subsection (e), nor any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation action taken by the Escrow Agent, or suffered or omitted by it in accordance with the advice of any counsel, shall relieve the Escrow Agent from liability for any claims that are occasioned by its gross negligence or willful misconduct;
(f) not be bound by any modification, amendment, termination, cancellation, or recission of this Agreement, unless the same shall be in writing and signed by it;
(g) be entitled to refrain from taking any action other than to keep all property held in escrow if it (i) shall be uncertain concerning its duties or rights hereunder, or (ii) shall have received claims or demands from any party, or (iii) shall have received instructions from the Purchaser and/or the Company that, in the Escrow Agent’s 's opinion, are in conflict with any of the provisions of this Agreement, until it shall have received a final judgment by a court of competent jurisdiction;
(h) have no liability for following the instructions herein or expressly provided for herein, or the written instructions given jointly by the Purchaser and/or the Company; and/or
(i) have the right, at any time, to resign hereunder by giving written notice of its resignation to all other parties hereto at least three (3) business days prior to the date specified for such resignation to take effect, and upon the effective date of such resignation all cash and other payments and all other property then held by the Escrow Agent hereunder shall be delivered by it to such person as may be designated in writing by the other parties executing this Agreement, whereupon the Escrow Agent's obligations hereunder shall cease and terminate. If no such person has been designated by such date, all obligations of the Escrow Agent hereunder shall, nevertheless, cease and terminate. The Escrow Agent's sole responsibility thereafter shall thereafter be to hold keep safely all property then held by it and to deliver the Escrow Account until same to a person designated by the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of other parties executing this Agreement or in accordance with its termsthe directions of a final order or judgment of a court of competent jurisdiction.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by Under this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent is a depository only and shall not sellhave no liability for the holding, transfer investment, disbursement, application or otherwise dispose of, in other disposition of any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the monies and/or documents received by Escrow Agent shall be determined solely by other than to comply with the specific instructions, terms and provisions expressly set forth in this Agreement, and the . Escrow Agent shall not be responsible or liable except in any manner for the performance sufficiency, correctness, genuineness or validity of such duties any instrument deposited with it hereunder, or for the form or execution thereof, or for the identity, authority or rights of any person executing or depositing the same, in accepting any monies or documents delivered to Escrow Agent hereunder, it is agreed and obligations as are specifically understood that the Escrow Agent will not be called upon to construe any contract, instrument or document deposited herewith or submitted hereunder, but only to follow the specific instructions expressly set forth and/or provided for in this Agreement.
(cb) In Escrow Agent, as a part of the consideration for its acceptance of this escrow, shall not, in the performance of its duties hereunderunder this Agreement, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(d) The Escrow Agent shall not be liable for any error of judgment, or for any action taken, suffered acts or omitted to be taken, hereunder except omissions done by it in the case of its gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Fundsgood faith, or income thereonfor any mistake of fact or law, nor as or for any claims, demands, causes of action, losses, liabilities, damages, costs or expenses claimed or suffered by any party to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive except such as may arise solely and directly as a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees result of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the own negligence or willful misconduct. Escrow Agent delivers the Escrow Funds is hereby authorized to such successor. If the rely upon, and shall be protected in acting upon, any notice, request, waiver, consent, receipt, certificate, affidavit, authorization, power of attorney, trust agreement or other paper or document believed by Escrow Agent shall resign or in good faith to be removed, a successor escrow agent, which shall be a bank or trust company having capital genuine and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company and delivered what it purports 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its termsbe.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Amreit)
Escrow Agent. (aA) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser the Buyer and the CompanyTownship, the Escrow Agent shall not sell, transfer transfer, or otherwise dispose of, in any manner, of all or any portion of the Escrow FundsFund in any manner, except pursuant to an order of a court of competent jurisdiction.
(bB) The duties and obligations of the Escrow Agent shall be determined solely by this Escrow Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Escrow Agreement.
(cC) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument instrument, or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof (specifically including the Township’s Representative), and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice on behalf of a party hereto in accordance with the provisions of this Agreement has been duly authorized to do so.
(dD) The Escrow Agent shall not be liable for any error of judgment, judgment or any action taken, suffered suffered, or omitted to be taken, taken hereunder except in the case of its gross negligence, bad faith 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 and in accordance with the opinion of such counsel.
(eE) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, Fund or income thereon, nor as to the preservation of preserve any rights pertaining thereto, thereto beyond the safe custody of any such funds actually in its possession.
(fF) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements disbursements, and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Escrow Agreement and the carrying out of its duties under this Escrow Agreement. All such fees and expenses shall be paid by Purchaserthe joint and several responsibility of the Township and the Buyer.
(gG) Purchaser The Buyer and the Company, jointly and severally, Township shall reimburse and indemnify the Escrow Agent for, for and hold it harmless against, against any loss, liability liability, or expense, including, without limitation, reasonable attorneys’ attorney’s fees to the extent incurred without fraud, except in connection with gross negligence, bad faith faith, or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, of its duties and obligations under this Escrow Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(hH) The Escrow Agent may resign at any time resign by giving thirty twenty (3020) business daysBusiness Days’ prior written notice of resignation to Purchaser the Township’s Representative and the CompanyBuyer. Purchaser The Township and the Company Buyer may at any time jointly remove the Escrow Agent at any time by jointly giving the Escrow Agent ten (10) business days prior Business Days’ written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successorthem. If the Escrow Agent shall is to resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, Escrow Agent shall be appointed by Purchaser and Company the Buyer by a written instrument executed by Purchaser the Township’s Representative and the Company and Buyer. Such instrument shall be delivered to the Escrow Agent and to such successor escrow agent Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor escrow agentEscrow Agent, without any further act, deed or conveyance, shall become vested with all right, title title, and interest to all cash and property held hereunder by of such predecessor Escrow Agent, and such . Such predecessor Escrow Agent shall, on the written request of Purchaser and the CompanyTownship’s Representative, the Buyer, or the successor Escrow Agent, execute and deliver to such successor escrow agent Escrow Agent all of its the right, title title, and interest hereunder in and to the Escrow Account Fund of such predecessor Escrow Agent and all of its other rights hereunderhereunder of such predecessor Escrow Agent. If no successor escrow agent shall have been Escrow Agent is appointed within twenty (20) business days Business Days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account Fund until the earlier of its receipt of designation of a successor escrow agentEscrow Agent, a joint written instructions instruction by Purchaser the Township’s Representative and the Company and Buyer, or termination of this Escrow Agreement in accordance with its terms.
(I) The Escrow Agent is acting as a stakeholder only with respect to the Escrow Fund. Upon making delivery of the Escrow Fund in the manner herein provided, the Escrow Agent shall have no further liability hereunder.
(J) The Township and the Buyer acknowledge that the Escrow Agent has represented the Township in connection with, among others things, the Agreement and the matters giving rise to this Escrow Agreement and will continue to represent the Township in connection with such matters and any other matters. Each of the parties to this Agreement waives any right it now has or may have in the future to any claim of conflict as a result of the Escrow Agent’s execution, delivery, and performance of this Agreement or the transactions contemplated hereby and the Escrow Agent’s representation of the Township in any matter including, without limitation, any action, litigation, or representation relating to the Agreement, this Escrow Agreement, and the matters giving rise to each of them.
Appears in 1 contract
Sources: Agreement of Sale
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the The Escrow Agent shall be entitled to reimbursement for all reasonable fees, expenses, disbursements and advances incurred or made by it in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). Such reimbursement for fees, expenses, disbursements and advances shall be paid by the Company if the Recapitalization is consummated or by the Offerors if the Recapitalization is not sell, transfer or otherwise dispose of, in any manner, all or any portion consummated; provided that each of the Company and the Offerors remain jointly and severally liable for such amount. The Escrow FundsAgent fee shall be of $12,000 (the "Escrow Agent Fee") which shall be paid by the Offerors upon execution of this Agreement; provided that if the Recapitalization is consummated, except pursuant then in such event the Offerors shall have the right to an order of a court of competent jurisdictioncollect such Escrow Agent Fee from the Company.
(b) The duties Escrow Agent shall have no liability or obligation with respect to the Escrow Fund except for Escrow Agent's willful misconduct, bad faith or gross negligence. Escrow Agent's sole responsibility shall be for the safekeeping, investment, and obligations disbursement of the Escrow Fund in accordance with the terms of this Agreement. Escrow Agent shall have no implied duties or obligations and shall not be determined solely charged with knowledge or notice of any fact or circumstance not specifically set forth herein. Escrow Agent may conclusively rely upon any instrument (whether in its original or facsimile form), and shall have no liability for acting in accordance with such instrument, not only as to its due execution, validity and effectiveness, 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 the person or parties purporting to sign the same and to conform to the provisions of this Agreement. In no event shall Escrow Agent be liable for incidental, and the indirect, special, consequential or punitive damages. Escrow Agent shall not be liable except for obligated to take any legal action or commence any proceeding in connection with the performance Escrow Fund, any account in which the Escrow Fund is deposited, this Agreement or the Offer Letter, or to appear in, prosecute or defend any such legal action or proceeding. Escrow Agent may consult legal counsel selected by it in the event of such duties and obligations any dispute or question as are specifically set forth in this Agreement.
(c) In to the performance construction of any of the provisions hereof or of any other agreement or of its duties hereunder, the Escrow Agent shall be entitled or relating to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by dispute involving any party hereto or an authorized officer or agent thereof hereto, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(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.
(e) Except as provided herein, the Escrow Agent shall have incur no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement liability and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it fully indemnified from any liability whatsoever in connection acting in accordance with the preparation opinion, advice or instruction of this Agreement such counsel. The Company and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Companyeach Offeror, jointly and severally, shall reimburse promptly pay, upon demand, the reasonable fees and indemnify expenses of any such counsel; provided, however, that in the event that the Company pays any amount of such fees and expenses and the Recapitalization is not consummated, then in such event the Company shall have the right to collect such payment from the Offerors; and provided further, that in the event that the Offerors pay any amount of such fees and expenses and the Recapitalization is consummated, then in such event the Offerors shall have the right to collect such payment from the Company.
(c) The Escrow Agent is authorized, in its sole discretion, to comply with orders issued or process entered by the Bankruptcy Court with respect to the Escrow Agent for, and hold it harmless against, any loss, liability or expense, includingFund, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt determination by the Escrow Agent of notice such court's jurisdiction in the matter. If any portion of the commencement Escrow Fund is at any time attached, garnished or levied upon under order of the Bankruptcy Court, or in case the payment, assignment, transfer, conveyance or delivery of any claim against such property shall be stayed or enjoined by any court order of the Bankruptcy Court, or in case any order, judgment or decree of the Bankruptcy Court shall be made or entered by any court affecting such property or any part thereof, then and in any such event, the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with respect to any such order, writ, judgment or decree which it is advised by legal counsel selected by it is binding upon it without the need for appeal or other action; and if the Escrow Agent demands indemnification under complies with any such order, writ, judgment or decree, it shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(d) From and at all times after the date of this Agreement, the Escrow Agent shall promptly notify Purchaser Company and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser Offerors, jointly and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense andseverally, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligationshall, to employ separate counsel in any such suit the fullest extent permitted by law and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; extent provided that the Escrow Agent’s resignation shall not be effective unless herein, fully indemnify and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor hold harmless Escrow Agent, its affiliates and such predecessor Escrow Agent shalltheir respective directors, on officers, employees and agents (collectively, the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account "Indemnified Parties") against any and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.actions,
Appears in 1 contract
Sources: Escrow Agreement (Penncorp Financial Group Inc /De/)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the The parties hereto designate First American Title Insurance Company, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Title Company”) as the escrow agent (the “Escrow Agent Agent”) in connection with this transaction. This Agreement shall not sell, transfer or otherwise dispose of, in any manner, all or any portion serve as escrow instructions and shall be subject to the usual conditions of acceptance of the Escrow FundsAgent, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations insofar as the same are not inconsistent with any of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance terms hereof. By execution of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(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.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent agrees that the ▇▇▇▇▇▇▇ Deposit shall be held as a deposit under this Agreement in an interest-bearing account and: (i) applied against the Purchase Price if Closing occurs; or (ii) delivered to Sellers or Buyer, in accordance with the terms of this Agreement upon the written approval of Sellers and Buyer, if Closing does not occur. Interest on the ▇▇▇▇▇▇▇ Deposit shall be paid to the party entitled to receive a fee in the amount specified in Schedule A ▇▇▇▇▇▇▇ Deposit pursuant to this Agreement Agreement.
a) Escrow Agent is hereby appointed by Buyer and Sellers to receive, hold and dispose of the ▇▇▇▇▇▇▇ Deposit set forth above in accordance with the terms and conditions hereof. Escrow Agent shall be reimbursed upon request not release any or all of the ▇▇▇▇▇▇▇ Deposit without joint written instructions from Buyer and Sellers. Escrow Agent is acting solely as a stakeholder and depository, and is not responsible or liable in any manner whatsoever for all expensesthe sufficiency, disbursements correctness, genuineness, or validity of the subject matter of the escrow, or for the identity or authority of any person executing or depositing it.
b) Buyer and advancesSellers agree to indemnify, including reasonable defend and hold harmless the Escrow Agent from and against any loss, cost, damage, expense and attorney’s fees of outside counsel, if any, incurred or made by it in connection with the preparation or in any way arising out of this Agreement and the carrying out of its duties under this Agreement. All such fees and , other than expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify resulting from the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, Agent’s own gross negligence, bad faith faith, or willful misconduct on misconduct.
c) In the part event of a dispute concerning the ▇▇▇▇▇▇▇ Deposit, Escrow Agent may continue to hold the ▇▇▇▇▇▇▇ Deposit pursuant to the terms hereof, or may, after giving Buyer and Sellers at least 15 days’ advance, written notice, at the joint and several cost of the Buyer and Sellers, deposit the same in a court of competent jurisdiction. Escrow Agent may dispose of the ▇▇▇▇▇▇▇ Deposit in accordance with a court order, and arising out ofshall be fully protected if it acts in accordance with any such court order.
d) Escrow Agent may, at its own expense, consult with legal counsel in the event of any dispute or questions as to the construction of any provisions hereof or its duties hereunder, and it shall be fully protected in connection acting in accordance with the acceptance of, opinion or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent instructions of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the such counsel.
e) Escrow Agent shall promptly notify Purchaser and the Company be protected in acting upon any written notice, request, waiver, consent, certificate, receipt, authorization, power of the commencement of such claim. In no event shall Purchaser attorney or the Company be liable under this indemnity for any claim against the other document Escrow Agent unless Purchaser in good faith believes to be genuine and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled what it purports to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofbe.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. Acceptance by the Escrow Agent of its duties hereunder is subject to the following terms and conditions, which all of the parties hereto agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent:
(a) Except as otherwise expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Companyprovided herein, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.receive no compensation for its services rendered hereunder;
(b) The duties Escrow Agent is not a party to and obligations of is not bound by any agreement relating to the Escrow Deposit, other than as expressly set forth herein;
(c) The Escrow Agent shall be determined solely by this Agreementprotected in acting upon any written notice, request, demand, waiver, consent, receipt or other document which the Escrow Agent in good faith believes to be genuine and what it purports to be, and the Escrow Agent shall not be liable except for to inquire as to the performance authenticity or genuineness of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of any signature which, on its duties hereunderface, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith appears to be genuine authentic and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.genuine;
(d) The Escrow Agent shall not be liable for any error of judgment, nor for any act done or any action taken, suffered step taken or omitted to be takenby it in good faith, hereunder nor for any mistake of fact or law, nor for anything which it may do or refrain from doing in connection herewith, except in the case of its own gross negligence, bad faith willful misconduct or willful misconduct.fraud, and the Escrow Agent shall not be liable for the act, default, misconduct or fraud of any agent or other persons employed by or acting on behalf of either Purchaser or Seller;
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, Seller hereby jointly and severally, shall reimburse and severally agree to indemnify the Escrow Agent for, and to hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent expense incurred without fraud, gross negligence, bad faith or willful misconduct or fraud on the part of the Escrow Agent and Agent, arising out of, of or in connection with the acceptance of, or the performance of, its entering into this Agreement and carrying out its duties hereunder, including the costs and obligations under this Agreement. Promptly after expenses of defending itself against any claim of liability relating hereto;
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel in the receipt by event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the opinion and instructions of such counsel; and
(g) To the extent the Escrow Agent is or was counsel to Seller, nothing herein shall prevent or otherwise impair the right of notice of the commencement of any claim against the Escrow Agent to represent Seller in connection with respect to which the Escrow Agent demands indemnification any action or dispute, whether arising under this Agreement, Agreement or otherwise and whether one party hereto is adverse to the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of other party hereto in connection with such claim. In no event shall Purchaser action or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofdispute.
(h) The Escrow Agent hereby waives any and all rights to offset claims it may at have against the Escrow Deposit, including claims arising as a result of any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove claims, amounts, liabilities, costs, expenses, damages or other losses that the Escrow Agent by giving ten (10) business days prior written notice signed by each of them may be entitled to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign collect from Purchaser or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its termsSeller.
Appears in 1 contract
Sources: Purchase Agreement (Idt Corp)
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, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent has no knowledge of, nor any obligation to comply with, the terms and conditions of any other agreement
(a) Except as expressly contemplated refrain from taking any action until it shall be given (i) a written direction executed by this Agreement or by Authorized Representatives of the Administrative Agent which eliminates such conflict, (ii) joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion Authorized Representatives of the Escrow Funds, except pursuant to an Administrative Agent and MKHL or (iii) a court order of issued by a court of competent jurisdiction.
jurisdiction (b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, it being understood that the Escrow Agent shall be entitled conclusively to rely and act upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof such court order and shall not be required have no obligation to investigate the truth or accuracy of any statement contained in determine whether any such document court order is final); or instrument.
(db) file an action in interpleader. 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.
(e) Except as provided herein, the Escrow Agent shall have no duty as to solicit any payments which may be due it or the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expenseFund, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of Escrow Deposit nor shall the Escrow Agent and arising out ofhave 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, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by no event shall the Escrow Agent of notice of the commencement be liable for special, incidental, punitive, indirect or consequential loss or damage of any claim against kind whatsoever (including but not limited to lost profits), even if the Escrow Agent with respect to which has been advised of the likelihood of such loss or damage and regardless of the form of action. Under no circumstances shall the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for obliged to make any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to payment from the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of where such payment would result in a notice of resignation by negative balance in the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its termsAccount.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser Parent and the CompanyStockholders’ Representative, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow FundsFund, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) 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.
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, Funds or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A B to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be divided equally between and paid by PurchaserParent, on the one hand, and the Stockholders’ Representative on behalf of the Stockholders, on the other.
(g) Purchaser Parent and the Company, jointly and severally, Stockholders shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent fees, incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement; provided that such loss, liability or expense shall be divided equally between Parent, on the one hand, and the Stockholders, on the other; and provided further that the portion of such loss, liability or expense to be paid by the Stockholders shall be paid by the Stockholders’ Representative on behalf of the Stockholders. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser Parent and the Company Stockholders’ Representative of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) 20 business days’ prior written notice of resignation to Purchaser Parent and the CompanyStockholders’ Representative. Purchaser Parent and the Company Stockholders’ Representative may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital its principal executive offices in California or New York and surplus assets in excess of at least $10 billion500 million, shall be appointed by Purchaser and Company Parent by a written instrument executed by Purchaser Parent and the Company Stockholders’ Representative 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser Parent and the CompanyStockholders’ Representative, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account Fund and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) 20 business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account Fund until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser Parent and the Company Stockholders’ Representative and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Merger Agreement (Ariba Inc)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable for any action taken or omitted by it in good faith and its liability hereunder shall be limited to liability for gross negligence or willful misconduct on its part. The Company and the Purchaser agree to save harmless, indemnify and defend the Escrow Agent for, from and against their respective share of any loss, damage, liability, judgment, cost and expense whatsoever, by reason of, or on account of, any misrepresentation made to it or its status or activities as Escrow Agent under this Agreement except for any loss, damage, liability, judgment, cost or expense resulting from gross negligence or willful misconduct on the performance part of such duties and obligations as are specifically set forth in the Escrow Agent. The Escrow Agent shall not be responsible for any failure or inability of any of the parties to perform or comply with the provisions of this Agreement.
(c) , or the agreements delivered in connection herewith. In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely in good faith upon any documentdocument (including facsimile transmitted copies of documents), instrument or signature believed by it in good faith to be genuine and to be signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume in good faith that any person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so. Each party hereto acknowledges that the Escrow Agent is serving as an accommodation to the parties hereto. Each party further acknowledges that the Escrow Agent has acted, acts, and will continue to act as legal counsel in certain matters to ▇.▇. ▇▇▇▇▇▇ & Co., Inc. ("▇▇▇▇▇▇"). It is understood and further agreed that the Escrow Agent shall:
(a) be under no duty to enforce payment of any subscription that is to be paid to and held by it hereunder,
(b) promptly notify the Purchaser and the Company of any discrepancy between the amounts set forth on any statement delivered by the Purchaser and/or the Company and the sum or sums delivered to it therewith;
(c) be under no duty to accept funds, checks, drafts or instruments for the payment of money from anyone other than the Company or the Purchaser, or to give any receipt therefor except to the Company or the Purchaser, with a copy in each case to the Company;
(d) The Escrow Agent be protected in acting upon any notice, request, certificate, approval, consent or other paper reasonably believed by it to be genuine and to be signed by the proper party or parties (including, but not limited to, copies of documents transmitted by facsimile);
(e) be permitted to consult with counsel of its choice, and shall not be liable for any error of judgment, or any action taken, suffered suffered, or omitted to be taken, hereunder except in the case of its gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection accordance with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement advice of such claim. In no event shall Purchaser or the Company be liable under counsel; provided, however, that nothing in this indemnity for subsection (e), nor any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation action taken by the Escrow Agent, or suffered or omitted by it in accordance with the advice of any counsel, shall relieve the Escrow Agent from liability for any claims that are occasioned by its gross negligence or willful misconduct;
(f) not be bound by any modification, amendment, termination, cancellation, or recision of this Agreement, unless the same shall be in writing and signed by it;
(g) be entitled to refrain from taking any action other than to keep all property held in escrow if it (i) shall be uncertain concerning its duties or rights hereunder, or (ii) shall have received claims or demands from any party, or (ii) shall have received instructions from the Purchaser and/or the Company that, in the Escrow Agent’s 's opinion, are in conflict with any of the provisions of this Agreement, until it shall have received a final judgment by a court of competent jurisdiction;
(h) have no liability for following the instructions herein or expressly provided for herein, or the written instructions given jointly by the Purchaser and/or the Company; and/or
(i) have the right, at any time, to resign hereunder by giving written notice of its resignation to all other parties hereto at least three business days prior to the date specified for such resignation to take effect, and upon the effective date of such resignation all cash and other payments and all other property then held by the Escrow Agent hereunder shall be delivered by it to such person as may be designated in writing by the other parties executing this Agreement, whereupon the Escrow Agent's obligations hereunder shall cease and terminate. If no such person has been designated by such date, all obligations of the Escrow Agent hereunder shall, nevertheless, cease and terminate. The Escrow Agent's sole responsibility thereafter shall thereafter be to hold keep safely all property then held by it and to deliver the Escrow Account until same to a person designated by the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of other parties executing this Agreement or in accordance with its termsthe directions of a final order or judgment of a court of competent jurisdiction.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in In performing any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The its duties and obligations of the Escrow Agent shall be determined solely by under this Agreement, and or upon the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of claimed failure to perform its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required liable to investigate any person for any damages, losses or expenses which such person may incur as a result of the truth Escrow Agent so acting, or accuracy of any statement contained in any such document or instrument.
(d) The failing to act; provided, however, that 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 damages arising out of its willful default or gross negligence, bad faith or willful misconduct.
(e) Except as provided hereinnegligence under this Agreement. Accordingly, the Escrow Agent shall have no duty not incur any such liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of its counsel or counsel for EDT or Learning-Edge given with respect to any questions relating to the duties and responsibilities of the Escrow Agent hereunder; or (ii) any action taken or omitted to be taken in reliance upon any document, including any written notice or instructions provided for in this Agreement, not only as to its due execution and to the validity and effectiveness of its provisions, but also as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation truth and accuracy of any rights pertaining theretoinformation contained therein, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, which the Escrow Agent shall receive a fee in good faith believe to be genuine, to have been signed or presented by the amount specified in Schedule A purported proper person or persons and to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection conform with the preparation provisions of this Agreement. The limitation of liability provisions of this Section shall survive the termination of this Agreement and the carrying out resignation or removal of its duties under this the Escrow Agent. Escrow Agreement. All such fees and expenses shall be paid by Purchaser.
(gb) Purchaser EDT and the CompanyLearning-Edge hereby, jointly and severally, shall reimburse agree to indemnify and indemnify hold harmless the Escrow Agent foragainst any and all losses, claims, damages, liabilities and hold it harmless against, any loss, liability or expenseexpenses, including, without limitation, reasonable attorneys’ costs of investigation and counsel fees to and disbursements (both at the extent trial and appellate levels) which may be imposed on the Escrow Agent or incurred without fraud, by it in connection with its acceptance of this appointment as the Escrow Agent hereunder or the performance of its duties hereunder (except in connection with the willful default or gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and hereunder), including, without limitation, any litigation arising out offrom this Agreement, or in connection with involving the acceptance of, subject matter hereof. The indemnity provisions of this Section shall survive the termination of this Agreement and the resignation or removal of the performance of, Escrow Agent. The Escrow Agent may resign at any time from its duties and obligations under this AgreementAgreement by providing written notice to the parties hereto. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company Such resignation shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time effective no more than sixty (60) days after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claimwritten notice has been given. The Escrow Agent shall have no responsibility for the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice appointment of resignation to Purchaser and the Companya successor escrow agent. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until If a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus not selected within sixty (60) days of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility Agent shall thereafter have the right to institute a Bill of Interpleader or other appropriate judicial proceeding in ▇▇▇ court of competent jurisdiction, and shall be entitled to hold tender into the registry or custody of any court of competent jurisdiction all money or property in its hand under the terms of this Agreement, whereupon the parties hereto agree the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions Agent shall be discharged from all further duties under this Agreement. The Escrow Agent may be removed for cause by Purchaser and the Company and termination of this Agreement in accordance with its termsEDT or Learning-Edge.
Appears in 1 contract
Sources: Plan of Reorganization and Agreement of Merger (Edt Learning Inc)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) 8.1 The duties and obligations of the Escrow Agent hereunder shall be determined solely by this Agreement, entirely administrative and the not discretionary. The Escrow Agent shall be obligated to act only in accordance with written or oral instructions received by it as provided in this Escrow Agreement and is authorized hereby to comply with any orders, judgments or decrees of any court of competent jurisdiction and shall not be liable except for as a result of its compliance with the performance of such duties and obligations as are specifically set forth in this Agreementsame.
(c) In 8.2 As to any legal questions arising in connection with the performance administration of its duties hereunder, the this Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(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.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in may rely absolutely upon the amount specified in Schedule A opinions given to this Agreement it by its counsel and shall be reimbursed upon request free of liability for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it acting in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All reliance on such fees and expenses shall be paid by Purchaseropinions.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the 8.3 The Escrow Agent formay rely absolutely upon the genuineness and authorization of the signature and purported signature of any party upon any instruction, and hold notice, release, receipt or other document delivered to it harmless againstpursuant to this Escrow Agreement.
8.4 The Escrow Agent may, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees as a condition to the extent incurred without frauddisbursement of monies as provided herein, gross negligencerequire from the payee or recipient a receipt therefor and, bad faith upon final payment or willful misconduct on the part disposition, a release of the Escrow Agent and from any liability arising out of, of its execution or in connection with the acceptance of, or the performance of, its duties and obligations under of this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company release to be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them a form reasonably satisfactory to the Escrow Agent; provided .
8.5 The parties agree that the Escrow Agent’s Agent will be compensated for its services in accordance with Exhibit B hereto, until termination of this Escrow Agreement or resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, . Buyer and the Shareholder shall each pay one-half of the fees and expenses of the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Seller and Purchaser covenant and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, agree that in performing any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The its duties and obligations of the Escrow Agent shall be determined solely by under this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(d) The Escrow Agent shall not be liable for any error loss, costs or damage which it may incur as a result of judgmentserving as escrow agent hereunder, except for any loss, costs or damage arising out of its willful default or gross negligence. Accordingly, Escrow Agent shall not incur any liability with respect to (i) any action taken, suffered taken or omitted to be taken, hereunder except taken in the case good faith upon advice of its gross negligencecounsel given with respect to any questions relating to its escrow duties and responsibilities, bad faith or willful misconduct.
(eii) Except to any action taken or omitted to be taken in reliance upon any document, including any written notice of instruction provided for in this Agreement, not only as provided hereinto its due execution and the validity and effectiveness of its provisions, but also to the truth and accuracy of any information contained therein, which Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services good faith believe to be rendered under this Agreementgenuine, the Escrow Agent shall receive to have been signed or presented by a fee in the amount specified in Schedule A proper person or persons and to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection conform with the preparation provisions of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and In the Company, jointly and severally, shall reimburse and indemnify event of a dispute between any of the parties hereto sufficient in the sole discretion of Escrow Agent forto justify its doing so, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in tender unto the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense registry or custody of any suit brought court of competent jurisdiction all money or property in its hands held under the terms of this Agreement, together with such legal pleading as it deems appropriate, and thereupon Escrow Agent will be discharged from any claims relating to enforce the right of ownership or possession by any party as to such claiminterpleaded money or property. The Escrow Agent shall have deposit the right▇▇▇▇▇▇▇ Money in an interest bearing account, but shall be under no obligation, subject to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to receipt from Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice form W-9 for the purposes of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its termsinvesting said funds.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hartman Short Term Income Properties XX, Inc.)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion Limitation of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations Agent's Liability; Responsibilities ------------------------------------------------------------ of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Agent. The Escrow Agent shall be entitled to rely upon ------------------- any documentjudicial order or judgment, upon any written opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by Aquarion or the Representatives in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. The Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it in good faith to be genuine and signed may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. At any time the Escrow Agent may request in writing an instruction in writing from Aquarion and the Representatives, on behalf of the Sellers, and may at its own option include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided, however, that the Escrow Agent shall state in such request that it believes in good faith that such proposed course of action is consistent with another identified provision of this Agreement. The Escrow Agent may act pursuant to the written advice of counsel chosen by it with respect to any party hereto or an authorized officer or agent thereof matter relating to this Agreement and shall not be required to investigate the truth liable for any action taken or accuracy of any statement contained omitted in any accordance with such document or instrument.
(d) advice. The Escrow Agent shall not be liable for called upon to advise any error of judgment, party as to taking or refraining from taking any action taken, suffered or omitted to be taken, hereunder except in the case of its gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless againstrespect to, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, funds or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofReleases deposited hereunder.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Escrow Agreement (Aquarion Co)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser Parent and the CompanyEquityholders’ Representative, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow FundsAccount, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) 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.
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A B to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by PurchaserParent.
(g) Purchaser Parent and the CompanyEquityholders’ Representative, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser Parent and the Company Equityholders’ Representative of the commencement of such claim. In no event shall Purchaser Parent or the Company Equityholders’ Representative be liable under this indemnity for any claim against the Escrow Agent unless Purchaser Parent and the Company Equityholders’ Representative shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser Parent and the Company Equityholders’ Representative shall be entitled to participate at their own expense in the defense and, if Purchaser Parent and the Company Equityholders’ Representative so elect at any time after receipt of such notice, Purchaser Parent and the Company Equityholders’ Representative may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser Parent and the CompanyEquityholders’ Representative. Purchaser Parent and the Company Equityholders’ Representative may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus assets in excess of at least $10 billion500 million, shall be appointed by Purchaser Parent and Company Equityholders’ Representative by a written instrument executed by Purchaser Parent and the Company Equityholders’ Representative 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser Parent and the CompanyEquityholders’ Representative, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser Parent and the Company Equityholders’ Representative and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Merger Agreement (Mgi Pharma Inc)
Escrow Agent. (a) Except The Title Company shall accept the Deposit with the understanding of the parties that Title Company is not a party to this Agreement except to the extent of its specific responsibilities hereunder and does not assume or have any liability for the performance or non-performance of Purchaser or Seller hereunder to each other.
(b) The Title Company shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document that is given to the Title Company without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
(c) The Title Company shall not be bound in any way by any other agreement or understanding between the Parties hereto, whether or not the Title Company has knowledge thereof or consents thereto unless such consent is given in writing.
(d) The Title Company’s sole duties and responsibilities under as expressly escrow agent for the Deposit shall be to hold and disburse the Deposit in accordance with this Agreement.
(e) The Title Company shall not be liable for any action taken or omitted by the Title Company in good faith and believed by the Title Company to be authorized or within its rights or powers conferred upon it by this Agreement, except for damage caused by the fraud or negligence of the Title Company.
(f) Upon the disbursement of the Deposit in accordance with the terms of this Agreement, the Title Company shall be relieved and released from any liability under this Agreement.
(g) The Title Company may resign at any time upon at least ten (10) days prior written notice to the Parties hereto. If, prior to the effective date of such resignation, the parties hereto shall all have approved, in writing, a successor escrow agent, then upon the resignation of the Title Company, the Title Company shall deliver the Deposit to such successor escrow agent. From and after such resignation and the delivery of the Deposit to such successor escrow agent, the Title Company shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor escrow agent. If for any reason the Parties hereto shall not approve a successor escrow agent within such period, the Title Company may bring any appropriate action or proceeding for leave to deposit the Deposit with a court of competent jurisdiction, pending the approval of a successor escrow agent, and upon such deposit the Title Company shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement.
(h) Seller and Purchaser hereby agree to, jointly and severally, indemnify, defend and hold the Title Company harmless from and against any liabilities, damages, losses, costs or expenses incurred by, or claims or charges made against, the Title Company (including reasonably attorneys’ 30 fees, expenses and court costs) by reason of the Title Company’s acting or failing to act in connection with any of the matters contemplated by this Agreement in its capacity as escrow agent for the Deposit or in carrying out the terms of this Agreement, except as a result of the Title Company’s fraud or negligence.
(i) In the event that a dispute shall arise in connection with this Agreement, or as to the rights of any of the Parties in and to, or the disposition of, the Deposit, either Party (a “Demanding Party”) may deliver to the other Party and the Title Company a written demand for payment of the Deposit (the “Demand”). The Title Company shall pay the Deposit to the Demanding Party unless the other Party, within ten (10) days following the delivery of the Demand to the other Party, shall deliver written notice (the “Dispute Notice”) to the Title Company and the Demanding Party stating that the other Party disputes the right of the Demanding Party to receive payment of the Deposit. If the other Party fails to timely deliver a Dispute Notice to the Title Company and the Demanding Party, the Title Company, promptly upon the expiration of such ten (10) day period, shall pay the Deposit to the Demanding Party without further authorization or direction from the other Party and conclusively shall be discharged and released from any liability or obligation to the other Party with respect to such payment. If the other Party timely delivers a Dispute Notice to the Title Company and the Demanding Party, the Title Company either shall (w) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by joint written instructions litigation, arbitration or otherwise, or (x) deposit the Deposit in an appropriate court of law, following which the Title Company shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the State of New York, or (z) interplead any of the Parties in any action or proceeding which may be brought to determine the rights of the Parties to all or any part of the Deposit. Notwithstanding anything to the contrary contained herein, Seller, Purchaser and Title Company each hereby acknowledges and agrees that payment of the Company, Deposit and the Escrow Agent balance of the Purchase Price to Seller pursuant to Section 7.2 of this Agreement shall not sellrequire written demand therefor by the Party to whom the Deposit and the balance of the Purchase Price is to be paid, transfer nor shall such payment be subject to objection by the other Party.
(j) The Title Company shall not have any liability or otherwise dispose of, in any manner, obligation for loss of all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations Deposit by reason of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument insolvency or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(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.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection failure of the Escrow Funds, or income thereon, nor as to institution of depository with whom the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possessionescrow account is maintained.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Contribution Agreement
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the CompanyF▇▇▇▇ Law, the Escrow Agent shall not sellLLC 4▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Windsor Locks, transfer or otherwise dispose of, CT With respect to any amount placed in any manner, all or any portion of the Escrow Funds, except escrow pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(d) The Escrow Agent shall not be liable for any error of judgment, action or any non-action taken, suffered or omitted to be taken, hereunder except that it may take in good faith in connection with the case performance of its gross negligenceduties hereunder but shall be liable for its own conflict of interest, bad faith willful default or willful misconduct.
(e) Except as provided herein. Notwithstanding anything contained in this Agreement to the contrary with respect to the obligations of the Escrow Agent, should any dispute arise with respect to the delivery and/or ownership or right to possession of such amount, Escrow Agent shall have no duty as liability to any party hereto for retaining dominion and control over such amount until such dispute shall have been settled: (i) by mutual agreement between the collection or protection of the Escrow Fundsparties, or income thereon(ii) by final order, nor as to decree or judgment by a court of competent jurisdiction in the preservation United States of any rights pertaining theretoAmerica (and no such order, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services decree or judgment shall be deemed to be rendered under this Agreement, "final" unless and until the time of appeal has expired and no appeal has been perfected). Escrow Agent shall receive a fee in make payment of such amount as the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, parties may have mutually agreed or in connection accordance with the acceptance ofsuch final order, decree or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claimjudgment. In no event shall Purchaser Escrow Agent be under any duty whatsoever to institute or the Company be liable under this indemnity for defend any claim against such proceeding. The fees and expenses of the Escrow Agent unless will be split evenly between the Seller and Purchaser. Seller and Purchaser and shall execute the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Title Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor 's escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removedagreement, a successor escrow agent, copy of which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its termsis attached hereto as Exhibit 2.
Appears in 1 contract
Escrow Agent. (a) Except On the Closing Date, Ihe Purchaser shall pay to the Escrow Agent an amount of money equal to the amount of the Converted Fees (the "Escrowed Funds"), to be held by it in escrow pursuant to this Section 7 and other applicable provisions of this Agreement. The Escrowed Funds shall be used by the Escrow Agent to (i) pay to the applicable Sellers any amounts in respect of Converted Fees not to be converted into Units as expressly contemplated by this Agreement or by joint written instructions from Purchaser provided in Section 6(c) and (ii) with respect to the balance of the Escrowed Funds, if any, following the completion of the Placement and the Companyconversion of Converted Fees to Units, pay such balance to or at the direction of the Purchaser.
(b) Prior to disbursement in accordance with this Agreement, the Escrowed Funds shall be maintained by the Escrow Agent in its State Bar of Texas "IOLTA" client trust fund with W▇▇▇▇ Fargo Bank Texas, N.A. (the "Trust Account"). The parties understand that interest earned on amounts in the Trust Account is forfeited to the State Bar of Texas and accordingly, the Escrowed Funds will not bear interest.
(c) Unless otherwise directed by a court of competent jurisdiction, the Escrow Agent shall not sell, transfer or otherwise dispose of, retain the Escrowed Funds and apply them only in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdictionconformity with (a) above.
(bd) The duties and obligations of the Escrow Agent shall be determined solely by the express provisions of this Agreement, Agreement and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(ce) The Escrow Agent is not a party to, and is not bound by or charged with notice of, any agreemenl out of which the escrow accepted by it hereunder may arise, including without limitation this Agreement and the Assignment; provided that by its execution hereof, the Escrow Agent agrees and accedes to the terms of this Agreement expressly applicable to it.
(f) The Escrow Agent shall not be responsible for any failure or inability of the other parties hereof, or any of them, to perform or comply with the provisions of agreement to which they may be party, including without limitation this Agreement or the Assignment.
(g) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument instrument, certificate or signature reasonably believed by it in good faith to be genuine gcnuine and signed by any party hereto or an authorized officer or agent thereof hereto, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so. In determining whether a court has competency, the Escrow Agent shall be entitled to rely on its own counsel.
(dh) The Escrow Agent shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, taken hereunder except in the case of its gross negligence, bad faith negligence or willful misconduct, nor shall it be liable for the default or misconduct of any employee, agent or attorney appointed by it who shall have been selected with reasonable care.
(ei) Except as provided herein, the The Escrow Agent shall have no responsibility as to the Escrowed Funds nor any duty as to the collection or protection of the Escrow Funds, Escrowed Funds or income thereon, nor as to thereon or the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possessionthe amount of the Escrowed Funds deposited into the Trust Account.
(fj) As compensation for its services to be rendered under this Agreement, The fees and expenses of the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counselAgent, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid borne exclusively by the Purchaser.
(gk) Subject to any rights it might have of collection, contribution or otherwise against the Sellers in respect thereof, the Purchaser and the Company, jointly and severally, shall will reimburse and indemnify the Escrow Agent and its partners, employees and agents for, and hold it them harmless against, any loss, liability or expense, includingincluding without limitation reasonable attorney's fees, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith negligence or willful misconduct on the part of the Escrow Agent or its partners, employees and agents arising out of, of or in connection with the acceptance of, or the performance of, its of the Escrow Agent's duties and obligations under under, this Agreement. Promptly after , as well as the receipt by reasonable costs and expenses of defending themselves against any claim or liability arising out of or relating to this Agreement.
(l) The Sellers acknowledge that the Escrow Agent of notice of serves as legal counsel to the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and has served in such capacity in connection with the Company negotiation, execution and delivery of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser Agreement and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser Assignment and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company and delivered Sellers (i) have expressly agreed to the Escrow Agent performing such functions hereunder 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and (ii) subject to the Escrow Account and all Agent performing its obligations in conformity with this Agreement, expressly waive any claim of conflict of interest or disqualification of the Escrow Agenl on the basis of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days representation of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its termsPurchaser.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated It is Agreed That All Funds Involved in This Sale Regarding the Purchase Price of the License Shall be Deposited in Escrow With Escrow Agent. The Escrow Agent may act upon any instrument or other writing believed by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sellin good faith to be genuine, transfer and to be signed by the property party. In the event of any controversy or otherwise dispose ofdispute hereunder, in or with respect to any mannerquestion as to the construction of this Agreement, all or any portion of the Escrow Funds, except pursuant action to an order of a court of competent jurisdiction.
(b) The duties and obligations of be taken by the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent may confer with counsel (including members of his own firm) and shall be entitled to rely upon incur no liability for any document, instrument action taken or signature believed by it suffered in good faith to be genuine in accordance with the advice or opinion of such counsel, including the depositing of the escrow fund in a court of competent jurisdiction which shall adjudicate any difference between Seller and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrumentPurchaser.
(da) 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.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation performance of this Agreement and the carrying out of its his duties under this Agreement. All such fees and expenses shall be paid by Purchaserhereunder, except for his own gross negligence, fraud or theft.
(gb) Purchaser The Escrow Agent shall be under no duty or responsibility to enforce any of the terms or conditions of this Agreement.
(c) Seller and the CompanyPurchaser, jointly and severally, shall reimburse and hereby indemnify the Escrow Agent for, and hold it the Escrow Agent harmless against, from and against any loss, liability or expenseexpense incurred (absent Escrow Agent's gross negligence, fraud or theft), arising out of or in connection with the acceptance or administration of the Escrow Agent's duties hereunder, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part cost and expense of defending the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of against any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofliability hereunder.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Chefs International Inc)
Escrow Agent. (a) 12.1 Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser Parent and the CompanyStockholders’ Representative, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow FundsFund, except pursuant to an order of a court of competent jurisdiction.
(b) 12.2 The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) 12.3 In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument instrument, or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) 12.4 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.
(e) Except as provided herein, the 12.5 The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, Funds or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds or Escrow Shares actually in its possession.
(f) 12.6 As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A C to this Agreement and shall be reimbursed upon request for all expenses, disbursements disbursements, and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be divided equally between and paid by PurchaserParent, on the one hand, and the Stockholders’ Representative on behalf of the Stockholders on the other.
(g) Purchaser 12.7 Parent and the Company, jointly and severally, Stockholders shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent fees, incurred without fraud, gross negligence, bad faith faith, or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement; provided that such loss, liability, or expense shall be divided equally between Parent, on the one hand, and the Stockholders, on the other; and provided further that the portion of such loss, liability, or expense to be paid by the Stockholders shall be paid by the Stockholders’ Representative on behalf of the Stockholders. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser Parent and the Company Stockholders’ Representative of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) 12.8 The Escrow Agent may at any time resign by giving thirty ten (3010) business days’ prior written notice of resignation to Purchaser Parent and the CompanyStockholders’ Representative. Purchaser Parent and the Company Stockholders’ Representative may at any time jointly remove the Escrow Agent by giving ten (10) business days days’ prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, agent shall be appointed by Purchaser and Company Parent by a written instrument executed by Purchaser Parent and the Company Stockholders’ Representative 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser Parent and the CompanyStockholders’ Representative, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account Fund and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account Fund until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser Parent and the Company and Stockholders’ Representative, or termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. (a) Except a. ▇▇▇▇▇▇ and ▇▇▇▇▇ acknowledge that the selection of ▇▇▇▇▇▇ Agent was not imposed upon any of them, and was voluntarily chosen by them as expressly contemplated by this Agreement or by joint written instructions from Purchaser and a matter of mutual agreement.
b. In performing any duties hereunder with respect to the CompanyDeposit, the Escrow Agent shall not sellincur any liability to anyone for any damages, transfer losses, or otherwise dispose of, in any manner, all or any portion of the Escrow Fundsexpenses, except pursuant arising solely by reason of its gross negligence or willful misconduct, and it shall accordingly not incur any such liability with respect to an order any action taken or omitted in reliance upon any written notice or instruction provided for in this Agreement, not only as to its due execution and the validity and effectiveness of a court its provisions, but also as to the truth and accuracy of competent jurisdiction.
(b) The duties and obligations of any information contained therein, which the Escrow Agent shall in good faith believe to be determined solely genuine, to have been signed or presented by a proper person or persons and to conform with the provisions of this Agreement. Buyer hereby agrees to indemnify, defend, release and hold harmless the Escrow Agent shall not against any and all losses, claims, damages, liabilities and expenses, including actual and reasonable costs of investigation and actual and reasonable counsel fees and disbursements, which may be liable except for imposed upon the performance of such duties and obligations as are specifically set forth Escrow Agent or incurred by the Escrow Agent in this Agreement.
(c) In connection with its acceptance or the performance of its duties hereunder, including any litigation arising from this Agreement or involving the subject matter hereof, excepting however, losses, claims, damages, liabilities or expenses arising solely as a result of Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent shall be entitled under no duty (i) to rely upon interpret this Agreement or any related agreement, or (ii) to investigate or inquire as to the validity or accuracy of any document, instrument agreement, instruction or signature request furnished to it hereunder believed by it in good faith to be genuine genuine, and signed by the Escrow Agent may rely and act upon, and shall not be liable for acting or not acting upon, any such document, agreement, instruction or request. The Escrow Agent shall in no way be responsible for notifying, nor shall it be its duty to notify, any party hereto or an authorized officer any other party interested in this Agreement of any payment required or agent thereof and maturity occurring under this Agreement. In no event shall the Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages. The Escrow Agent shall not be required obligated to investigate take any legal action or commence any proceeding in connection with this Agreement or the truth related documents, or accuracy of any statement contained in to appear in, prosecute or defend any such document legal action or instrumentproceeding. The Escrow Agent is authorized, in its sole discretion, to comply with orders issued or process entered by any court with respect to this Agreement without determination by the Escrow Agent of such court’s jurisdiction in the matter. If the Escrow Agent complies with any order, judgment or determination of a court of proper jurisdiction, it shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even though such order writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(d) c. In the event of a dispute between Seller and Buyer, and upon written notice to Escrow Agent in accordance with Section 19 of the Agreement of such dispute, Escrow Agent shall refrain from taking any action until it shall be given a joint direction in writing by Seller and Buyer which resolves the dispute to the satisfaction of Escrow Agent or until the dispute has been resolved by a final and non-appealable judgment, order or determination by any court of competent jurisdiction, or, at the Escrow Agent’s option, the Escrow Agent may deposit into the registry of the Civil District Court in Orleans Parish, Louisiana, all money in its hands under this Agreement in a concursus proceeding and have Seller and Buyer cited to appear and prove their entitlement to such money, and thereupon be discharged from all further duties and liabilities under this Agreement, except for any liabilities arising solely as a result of Escrow Agent’s gross negligence or willful misconduct. The parties hereto further agree that 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.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection failure of the Escrow Funds, or income thereon, nor as to bank into which the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation Deposit is deposited. The provisions of this Agreement and Section 1(c) shall survive the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part termination of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Sale Agreement
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the CompanyIn performing any of its duties hereunder, the Escrow Agent shall not sellincur any liability to anyone for any damages, transfer losses or otherwise dispose of, in any manner, all or any portion of the Escrow Fundsexpenses, except pursuant for willful default or breach of trust, and it shall accordingly not incur any such liability with respect (a) to an order any action taken or omitted in good faith upon advice of a court of competent jurisdiction.
its counsel or (b) The duties to any action taken or omitted in reliance upon any instruments, including any written notice or instruction provided for in this Agreement, not only as to its due execution and obligations the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be determined solely genuine, to have been signed or presented by a proper person or persons and to conform with the provisions of this Agreement, . The parties hereby agree to indemnify and the hold harmless Escrow Agent shall not against any and all losses, claims, damages, liabilities and expenses, including reasonable costs of investigations and counsel fees and disbursements, which may be liable except for the performance imposed upon Escrow Agent or incurred by Escrow Agent in connection with its acceptance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, including any litigation arising from this Agreement or involving the subject matter hereof except for willful default and breach of trust by Escrow Agent. In the event of a dispute between any of the parties hereto sufficient in the discretion of Escrow Agent to justify its doing so, Escrow Agent shall be entitled to rely upon any document, instrument tender into the registry or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(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.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually court of competent jurisdiction all money or property in its possession.
(f) As compensation for its services to be rendered hands under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall thereupon be reimbursed upon request for discharged from all expenses, disbursements further duties and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties liabilities under this Agreement. All such fees The Purchaser and Seller shall bear all costs and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereoflegal proceedings.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Agreement to Purchase Land (Southernbank Holdings Inc)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in In performing any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled not incur any liability to rely upon anyone for any documentdamages, instrument losses or signature believed by expenses, except for willful default or breach of trust or gross negligence, and it shall accordingly not incur any such liability with respect: (i) to any action taken or omitted in good faith upon advice of its counsel or (ii) to be genuine any action taken or omitted in reliance upon any instrument, executed by Purchaser and signed by Seller including any party hereto written notice or an authorized officer or agent thereof instruction provided for in this Agreement, not only as to its due execution and shall not be required the validity and effectiveness of its provisions but also as to investigate the truth or and accuracy of any statement information contained in any such document or instrument.
(d) The Escrow Agent shall not be liable for any error of judgmenttherein, or any action taken, suffered or omitted to be taken, hereunder except in the case of its gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, which the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services good faith believe to be rendered under genuine, to have been signed or presented by a proper person or persons and to conform with the provisions of this Agreement, . The Escrow Agent is hereby specifically authorized to refuse to act except upon the written consent of ▇▇▇▇▇▇ and Purchaser. Seller and Purchaser hereby agree to indemnify and hold harmless the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement against any and shall be reimbursed upon request for all losses, claims, damages, liabilities and expenses, disbursements and advances, including reasonable fees costs of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement investigation and the carrying out of its duties under this Agreement. All such counsel fees and expenses shall disbursements, which may be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify imposed upon the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent in connection with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser its acceptance or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all performance of its rightduties hereunder, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of including any litigation arising from this Agreement in accordance or involving the subject matter hereof except for matters associated with its terms.Escrow Agents willful default or breach of trust or gross 4627850-8 10355.060000
Appears in 1 contract
Sources: Purchase and Sale Agreement (Orion Group Holdings Inc)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the CompanyThe duties, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties responsibilities and obligations of the Escrow Agent shall be determined solely by limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied against the Escrow Agent. The Escrow Agent shall not be subject to, nor required to comply with, any other agreement to which Buyer or Seller is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from Buyer or Seller or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
(b) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Deposit Escrow Funds (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Deposit Escrow Funds), then the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate, and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other forms of judicial or administrative process, then the Escrow Agent shall not be liable except for to any of the performance of parties hereto or to any other person or entity even though such duties and obligations as are specifically set forth in this Agreementorder, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(d) The Escrow Agent shall not be liable for any error of judgment, or any action taken, suffered taken or omitted to be taken, or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder except in the case absence of its gross negligence, bad faith negligence or willful misconduct.
(e) Except as provided herein, misconduct on its part. In no event shall the Escrow Agent shall have no duty as to the collection be liable (i) for acting in accordance with or protection conclusively relying upon any instruction, notice, demand, certificate or document from Buyer or Seller or any entity acting on behalf of Buyer or Seller, (ii) for any indirect, consequential, punitive or special damages, regardless of the Escrow Funds, form of action and whether or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of not any such funds actually in damages were foreseeable or contemplated, (iii) for the acts or omissions of its possession.
(f) As compensation for its services to be rendered under this Agreementnominees, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expensescorrespondents, disbursements and advancesdesignees, including reasonable fees of outside counselagents, if any, incurred subagents or made by it subcustodians in connection with the preparation Escrow Agent’s duties hereunder in the absence of this Agreement and gross negligence or willful misconduct on its part, (iv) for the carrying out investment or reinvestment of its duties under this Agreement. All such fees and expenses shall be paid any cash held by Purchaser.
(g) Purchaser and it hereunder, in each case in good faith, in accordance with the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expenseterms hereof, including, without limitation, reasonable attorneys’ fees any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Deposit Escrow Funds, or any loss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Deposit Escrow Funds, valued as of the date of deposit, but only to the extent incurred without fraudof direct money damages.
(d) The Escrow Agent may consult with legal counsel of its own choosing as to any matter relating to this Agreement, gross negligenceand the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(e) The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, bad faith obligation or willful misconduct on responsibility hereunder by reason of any occurrence beyond the part control of the Escrow Agent and arising out of(including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(f) The Escrow Agent shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the acceptance ofprovisions hereof has been duly authorized to do so.
(g) The Escrow Agent shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the performance ofidentity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or endorsement. The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) At any time the Escrow Agent may request an instruction in writing from the Buyer and Seller and may, at its own option, include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations under this Agreementhereunder. Promptly The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the receipt date specified therein, provided that the specified date shall be at least three (3) Business Days after Buyer and Seller receives the Escrow Agent’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested.
(i) When the Escrow Agent acts on any information, instructions, communications (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence or willful misconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of Buyer or Seller or is not in the font or format Buyer and Seller sent or intended to send (whether due to fraud, distortion or otherwise). Buyer and Seller shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication.
(j) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent of notice of the commencement of any claim against hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action, other than to retain possession of the Deposit Escrow Funds, unless the Escrow Agent receives written instructions, signed by Buyer and Seller, which eliminates such ambiguity or uncertainty.
(k) In the event of any dispute between or conflicting claims among Buyer and Seller and any other person or entity with respect to which the Deposit Escrow Agent demands indemnification under this AgreementFunds, the Escrow Agent shall promptly notify Purchaser be entitled, in its sole discretion, to refuse to comply with any and the Company of the commencement of all claims, demands or instructions with respect to such claim. In no event Deposit Escrow Funds so long as such dispute or conflict shall Purchaser or the Company be liable under this indemnity for any claim against continue, and the Escrow Agent unless Purchaser shall not be or become liable in any way to Buyer and the Company shall have been promptly notified by the Escrow Agent of the commencement of any Seller for failure or refusal to comply with such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense andconflicting claims, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claimdemands or instructions. The Escrow Agent shall be entitled to refuse to act until either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the rightconflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, but judgment or decree shall be under no obligationaccompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to employ separate counsel the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in any addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit and participate in the defense thereofproceeding shall be paid by Buyer.
(hl) The Escrow Agent may at does not have any time resign by giving thirty (30) business days’ prior written notice of resignation interest in the Deposit Escrow Funds deposited hereunder but is serving as escrow holder only and having only possession thereof. Buyer and Seller shall be jointly and severally liable to Purchaser and the Company. Purchaser and the Company may at any time jointly remove pay or reimburse the Escrow Agent by giving ten (10) business days prior written notice signed by each of them upon request for any transfer taxes, if any, or other taxes relating to the Deposit Escrow Agent; provided that the Escrow Agent’s resignation Funds incurred in connection herewith and shall not be effective unless indemnify and until a successor escrow agent is appointed and hold harmless the Escrow Agent delivers from any amounts that it is obligated to pay in the way of such taxes, if any. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. Buyer and Seller shall provide the Escrow Funds to such successorAgent with appropriate W-9 forms for tax identification number certifications. If It is understood that the Escrow Agent shall resign only be responsible for income reporting to Buyer and Seller with respect to income earned on the Deposit Escrow Funds and shall not be responsible for any other reporting. This Section 10(l) shall survive notwithstanding any termination of this Agreement or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company and delivered to the Escrow Agent and to such successor escrow agent and, thereupon, the resignation or removal of the predecessor Escrow Agent.
(m) The Escrow Agent shall become effective provide to Buyer and such successor escrow agentSeller monthly statements setting forth the balance of the Deposit Escrow Funds, without any further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account earned and all of its other rights hereunder. If no successor escrow agent distributions made, which statements shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be delivered to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser Buyer and the Company and termination of this Agreement Seller at their respective addresses set forth in accordance with its termsSection 11(d).
Appears in 1 contract
Sources: Asset Purchase Agreement
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, hold possession of and solely keep the Deposit and all or any portion of the Escrow Funds, except pursuant items delivered to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by hereunder subject to the terms and conditions of this Agreement, and shall deliver and dispose of the same according to the terms and conditions hereof and the Purchase Agreement, and shall deal with the parties hereto fairly and impartially according to the intent of the parties as herein expressed, provided however that Escrow Agent is to be considered as a depository only, shall not be deemed to be a party to any document other than this Agreement, and shall not be responsible or liable except in any manner whatsoever for the performance sufficiency, manner of such duties and obligations execution, or validity of any written instructions, certificates or any of the escrow items received by it, nor as are specifically set forth in this Agreement.
(c) In to the performance identity, authority or rights of its duties hereunder, any persons executing the same. Escrow Agent shall be entitled to rely at all times on instructions given by or on behalf of Granite and Rocky Mountain, through their authorized representatives, as the case may be and as required hereunder, without any necessity of verifying the authority therefor.
(b) Escrow Agent shall not at any time be held liable for actions taken or omitted to be taken in good faith and without negligence.
(c) In taking or omitting to take any action whatsoever hereunder, Escrow Agent shall be protected in relying upon any documentnotice, instrument paper, or signature other document believed by it to be genuine, or upon evidence deemed by it to be sufficient, and in no event shall Escrow Agent be liable hereunder for any act performed or omitted to be performed by it hereunder in the absence of negligence, bad faith, or intentional misconduct. Escrow Agent may, at its expense, consult with counsel in connection with its duties hereunder and shall be fully protected in any act taken, suffered or permitted by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(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.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement negligence in accordance with its termsthe advice of such counsel.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Iasis Healthcare Corp)
Escrow Agent. (aA) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser the Buyer and the CompanyBorough, the Escrow Agent shall not sell, transfer transfer, or otherwise dispose of, in any manner, of all or any portion of the Escrow FundsFund in any manner, except pursuant to an order of a court of competent jurisdiction.
(bB) The duties and obligations of the Escrow Agent shall be determined solely by this Escrow Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Escrow Agreement.
(cC) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument instrument, or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof (specifically including the Borough’s Representative), and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice on behalf of a party hereto in accordance with the provisions of this Agreement has been duly authorized to do so.
(dD) The Escrow Agent shall not be liable for any error of judgment, judgment or any action taken, suffered suffered, or omitted to be taken, taken hereunder except in the case of its gross negligence, bad faith 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 and in accordance with the opinion of such counsel.
(eE) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, Fund or income thereon, nor as to the preservation of preserve any rights pertaining thereto, thereto beyond the safe custody of any such funds actually in its possession.
(fF) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements disbursements, and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Escrow Agreement and the carrying out of its duties under this Escrow Agreement. All such fees and expenses shall be paid by Purchaserthe joint and several responsibility of the Borough and the Buyer.
(gG) Purchaser The Buyer and the Company, jointly and severally, Borough shall reimburse and indemnify the Escrow Agent for, for and hold it harmless against, against any loss, liability liability, or expense, including, without limitation, reasonable attorneys’ attorney’s fees to the extent incurred without fraud, except in connection with gross negligence, bad faith faith, or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, of its duties and obligations under this Escrow Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(hH) The Escrow Agent may resign at any time resign by giving thirty twenty (3020) business daysBusiness Days’ prior written notice of resignation to Purchaser the Borough’s Representative and the CompanyBuyer. Purchaser The Borough and the Company Buyer may at any time jointly remove the Escrow Agent at any time by jointly giving the Escrow Agent ten (10) business days prior Business Days’ written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successorthem. If the Escrow Agent shall is to resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, Escrow Agent shall be appointed by Purchaser and Company the Buyer by a written instrument executed by Purchaser the Borough’s Representative and the Company and Buyer. Such instrument shall be delivered to the Escrow Agent and to such successor escrow agent Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor escrow agentEscrow Agent, without any further act, deed or conveyance, shall become vested with all right, title title, and interest to all cash and property held hereunder by of such predecessor Escrow Agent, and such . Such predecessor Escrow Agent shall, on the written request of Purchaser and the CompanyBorough's Representative, the Buyer, or the successor Escrow Agent, execute and deliver to such successor escrow agent Escrow Agent all of its the right, title title, and interest hereunder in and to the Escrow Account Fund of such predecessor Escrow Agent and all of its other rights hereunderhereunder of such predecessor Escrow Agent. If no successor escrow agent shall have been Escrow Agent is appointed within twenty (20) business days Business Days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account Fund until the earlier of its receipt of designation of a successor escrow agentEscrow Agent, a joint written instructions instruction by Purchaser the Borough’s Representative and the Company and Buyer, or termination of this Escrow Agreement in accordance with its terms.
(I) The Escrow Agent is acting as a stakeholder only with respect to the Escrow Fund. Upon making delivery of the Escrow Fund in the manner herein provided, the Escrow Agent shall have no further liability hereunder.
(J) The Borough and the Buyer acknowledge that the Escrow Agent has represented the Borough in connection with, among other things, the Agreement and the matters giving rise to this Escrow Agreement and will continue to represent the Borough in connection with such matters and any other matters. Each of the parties to this Agreement waives any right it now has or may have in the future to any claim of conflict as a result of the Escrow Agent’s execution, delivery, and performance of this Agreement or the transactions contemplated hereby and the Escrow Agent’s representation of the Borough in any matter including, without limitation, any action, litigation, or representation relating to the Agreement, this Escrow Agreement, and the matters giving rise to each of them.
Appears in 1 contract
Sources: Agreement of Sale
Escrow Agent. (a) Except as expressly contemplated The acceptance by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent of its duties under this Agreement is subject to the following terms and conditions, which shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of govern and control with respect to the Escrow FundsAgent’s rights, except pursuant to an order of a court of competent jurisdiction.duties, liabilities and immunities:
(ba) The duties and obligations of the Escrow Agent shall be determined solely by the provisions of this Agreement, and the Escrow Agent shall not be liable to any person except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(db) The Escrow Agent shall not be liable responsible in any manner for any error failure or inability of judgmentthe Company or the Investor to honor any of the provisions of this Agreement or the Investment Agreement or any of the agreements contemplated by the Investment Agreement or any other instrument or agreement executed and delivered pursuant thereto.
(c) Each of the Company and the Investor agrees (i) to make no claim, and to bring no action, suit or proceeding, against the Escrow Agent by reason of any alleged loss, liability, claim or charge arising out of, or any action takenin connection with, suffered the Escrow Agent’s acceptance or omitted to be takenperformance (including acts and omissions), hereunder except in the case of its good faith and without willful misconduct or gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered duties and obligations under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(gii) Purchaser and the Company, jointly and severally, shall to reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability liability, cost or expense, expense (including, without limitation, reasonable attorneys’ fees to the extent and disbursements) incurred without fraudbad faith, gross negligence, bad faith or willful misconduct or gross negligence on the part of the Escrow Agent Agent, and arising out of, or in connection with with, the Escrow Agent’s acceptance or performance of its duties hereunder, as well as the costs and expenses of instituting, prosecuting or defending any claim, action suit or proceeding arising out of, or the performance ofrelating to, its duties and obligations under this Agreement. Promptly after the receipt , including, without limitation, any action for a declaratory judgment in such regard instituted by the Escrow Agent of notice of the commencement of any claim against the Agent.
(d) The Escrow Agent with respect shall, in the absence of its own gross negligence or willful misconduct, be fully protected in acting and relying upon any written advice, certificate, notice, direction, instruction, request, order, judgment, decree or other document given to it which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser in good faith believes to be genuine and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall to have been promptly notified signed or presented by the Escrow Agent of the commencement of proper party or parties, and may assume that any person purporting to give such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense andadvice, if Purchaser and the Company so elect at any time after receipt of such certificate, notice, Purchaser and the Company may assume the defense of any suit brought direction, instruction, request or other document has been duly authorized to enforce any such claimdo so. The Escrow Agent shall have assumes no responsibility for the right, but shall be under no obligation, to employ separate counsel in accuracy of the contents of any such suit and participate in the defense thereofdocument.
(he) The Escrow Agent may seek the advice of legal counsel in the event of any dispute or question as to the construction of the provisions of this Agreement or its duties hereunder, and may rely on an opinion of such counsel. In rendering such opinion, such counsel may rely on statements of fact furnished to them by persons reasonably believed by such counsel to be credible, and such counsel shall have no liability for the accuracy of the facts so relied upon, nor shall such counsel have any liability for matters of their own judgment forming a part of the process of providing such opinion.
(f) The Escrow Agent and any successor escrow agent, as the case may be, may resign as escrow agent hereunder and be discharged from all other further duties and obligations hereunder at any time resign by upon giving thirty (30) business days’ prior written notice of resignation to Purchaser the Company and the CompanyInvestor, who shall thereupon jointly designate a successor escrow agent hereunder within such 30-day period, to whom the Escrow Agent shall deliver the Escrow Shares then held by the Escrow Agent. Purchaser The Company and the Company Investor may jointly terminate this Agreement at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation , and, in such event, shall not be effective unless and until jointly (i) designate a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds hereunder to such successor. If whom the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed deliver the Escrow Shares then held by Purchaser and Company by a written instrument executed by Purchaser and the Company and delivered to the Escrow Agent and or (ii) direct the Escrow Agent to such successor escrow agent and, thereupon, the resignation or removal otherwise dispose 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 Shares then held hereunder by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent. In either case, in the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier absence of its receipt of such a joint designation of a successor escrow agent, joint written instructions the Escrow Agent shall, without further liability or responsibility, retain any Escrow Shares then held by Purchaser and the Escrow Agent as custodian thereof until otherwise jointly directed by the Company and termination the Investor.
(g) The Escrow Agent does not have and shall not have any interest in the Escrow Shares but is serving only as escrow holder thereof.
(h) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent, and the Escrow Agent shall not be bound to the provisions of any agreement among the other parties hereto except this Agreement.
(i) In the event of a dispute among the parties hereto that cannot be resolved after diligent efforts by the parties, the Escrow Agent, may its option upon ten (10) days’ prior written notice to the other parties, elect to deposit the Escrow Shares with the Supreme Court of the State of New York in accordance with its termsNew York, New York, or other comparable court of equivalent jurisdiction, for such court to determine the disposition of the Escrow Shares and in such event, each of the Company, the Investor and the Escrow Agent shall abide by such court’s decision.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement The Escrow Agent will not be liable for any action taken or by joint written instructions omitted or for any loss or injury resulting from Purchaser and its actions or its performance or lack of performance of its duties hereunder in the Companyabsence of gross negligence, willful misconduct or bad faith on its part. In no event will the Escrow Agent shall not sellbe liable, transfer directly or otherwise dispose ofindirectly, (i) for acting in accordance with or relying upon any mannerinstruction, all notice, demand, certificate or document from the Company or the Trustee or any portion entity acting on behalf thereof, (ii) for any indirect, consequential, punitive or special loses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the possibility of such losses or damages and regardless of the form of action (but without limiting the obligations and liabilities of the Escrow FundsAgent by operation of the first sentence of this Section II.4(a)), except pursuant to (iii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians, so long as the same are selected with due care, or (iv) for an order amount in excess of a court the value of competent jurisdictionthe Escrow Property.
(b) The duties and obligations Escrow Agent may consult with legal counsel at the reasonable expense of the Escrow Agent shall be determined solely by Company as to any matter relating to this Agreement, and the Escrow Agent shall will not be liable except for the performance of incur any liability in acting in good faith in accordance with any advice from such duties and obligations as are specifically set forth in this Agreementcounsel.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(d) The Escrow Agent shall will not be liable incur any liability for not performing any error of judgmentact or fulfilling any duty, obligation or any action taken, suffered or omitted to be taken, responsibility hereunder except in the case of its gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation by reason of any rights pertaining thereto, occurrence beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part control of the Escrow Agent and arising out of(including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or in connection with the acceptance ofwar, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice unavailability of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser Federal Reserve Bank wire or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereoftelex or other wire or communication facility).
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Escrow and Security Agreement (Jda Software Group Inc)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from the Purchaser and the CompanyStockholder Representative or pursuant to an order of a court of a competent jurisdiction, the Escrow Agent shall not sell, transfer or otherwise dispose of, of in any manner, manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations responsibilities of the Escrow Agent shall be determined solely by limited to those expressly set forth in this Escrow Agreement, and the Escrow Agent shall not be liable except for subject to, nor obligated to interpret, any other agreements to which the performance of such duties and obligations Purchaser, the Company or the Stockholders are parties. Except as are specifically set forth otherwise provided in the Preamble to this Agreement, reference in this AgreementEscrow Agreement to the Stock Purchase Agreement is for identification purposes only and for reference to the defined terms therein and its terms and conditions are not thereby incorporated herein.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any Person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be 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 and in accordance with the opinion of such counsel.
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, Amount or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid shared equally by the Stockholders, on the one hand, and the Purchaser, on the other. The parties hereby grant the Escrow Agent a lien, right of set-off and security interest to the account for the payment of any claim for compensation, expenses and amounts due hereunder.
(g) The Purchaser and the Company, Stockholders agree to jointly and severally, shall severally reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent ' fees, incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after The Purchaser, on the receipt one hand, and the Stockholders, on the other, agree among themselves that they shall share equally the costs of any such loss, liability or expense suffered by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofAgent.
(h) The Escrow Agent may at any time resign by giving thirty twenty (3020) business days’ Business Days' prior written notice of resignation to Purchaser the Stockholder Representative and the CompanyPurchaser. Purchaser The Stockholder Representative and the Company Purchaser may at any time jointly remove the Escrow Agent by giving ten (10) business days prior Business Days' written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agentEscrow Agent, which shall be a bank or trust company having capital its principal executive offices in New York, New York, and surplus assets in excess of at least $10 billion10,000,000,000, and which shall be reasonably acceptable to the Stockholder Representative, shall be appointed by the Purchaser and Company by a written instrument executed by Purchaser the Stockholder Representative and the Company Purchaser and delivered to the Escrow Agent and to such successor escrow agent Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor escrow agentEscrow Agent, without any further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder by of such predecessor Escrow Agent, net of any outstanding fees due the predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the CompanyStockholder Representative or the Purchaser, execute and deliver to such successor escrow agent Escrow Agent all of its the right, title and interest hereunder in and to the Escrow Account Funds of such predecessor Escrow Agent and all of its other rights hereunderhereunder of such predecessor Escrow Agent. If no successor escrow agent Escrow Agent shall have been appointed within twenty (20) business days Business Days of a notice of resignation by the Escrow Agent, the Escrow Agent’s 's sole responsibility shall thereafter be to hold the Escrow Account Funds until the earlier of its receipt of designation of a successor escrow agentEscrow Agent, a joint written instructions instruction by Purchaser the Stockholder Representative and the Company Purchaser and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Escrow Agreement (Oneida LTD)
Escrow Agent. (a) Except as expressly contemplated by Limitation of the Escrow Agent's Liability; ------------------------------------------- Responsibilities of the Escrow Agent. The Escrow Agent's responsibility and ------------------------------------ liability under this Agreement shall be limited as follows:
(i) the Escrow Agent does not represent, warrant or guaranty to the holders of the Notes from time to time the performance of the Company or the Trustee; (ii) the Escrow Agent shall have no responsibility to the Company or the holders of the Notes or the Trustee from time to time as a consequence of performance or nonperformance by joint written instructions from Purchaser and the Escrow Agent hereunder, except for any gross negligence or willful misconduct of the Escrow Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and conduct; and (iv) the Escrow Agent is not obligated to supervise, inspect or inform the Company or any third party of any matter referred to above. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions of any agreement beyond the specific terms hereof. Specifically and without limiting the foregoing, the Escrow Agent shall not sellin no event have any liability in connection with its investment, transfer reinvestment or otherwise dispose ofliquidation, in good faith and in accordance with the terms hereof, of any mannerfunds or Temporary Cash Investments held by it hereunder, all including without limitation any liability for any delay not resulting from gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any portion loss of the Escrow Funds, except pursuant principal or income incident to an order of a court of competent jurisdiction.
(b) any such delay. The duties and obligations of the Escrow Agent shall be determined solely 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, Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. The Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent may act pursuant to the written advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to Section 4(a)(ii)) shall not be liable for any action taken or omitted in accordance with such advice. The Escrow Agent shall not be liable except for the performance of such duties and obligations called upon to advise any party as are specifically set forth in this Agreement.
(c) to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In the performance event of its duties any ambiguity in the provisions of this Agreement with respect to any funds or property deposited hereunder, the Escrow Agent shall be entitled to rely upon refuse to comply with any documentand all claims, instrument demands or signature believed by it in good faith instructions with respect to be genuine such funds or property, and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(d) The Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until either any error conflicting or adverse claims or demands shall have been finally deter- mined by a court of judgmentcompetent jurisdiction or settled by agreement between the conflicting claimants as evidenced in a writing, satisfactory to the Escrow Agent, or any action taken, suffered or omitted to be taken, hereunder except in the case of its gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, the Escrow Agent shall have no duty as received security or an indemnity satisfactory to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A sufficient to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify save the Escrow Agent for, harmless from and hold it harmless against, against any and all loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to expense which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company may incur by reason of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claimits acting. The Escrow Agent shall have may in addition elect in its sole option to commence an interpleader action or seek other judicial relief or orders as the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice deem necessary. No provision of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove this Agreement shall require the Escrow Agent by giving ten (10) business days prior written notice signed by each to expend or risk its own funds or otherwise incur any financial liability in the performance of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights duties hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from the Purchaser and the CompanySeller, the Escrow Agent shall not sell, transfer or otherwise dispose of, of in any manner, manner all or any portion of the Escrow FundsFund, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any Person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be 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 and in accordance with the opinion of such counsel.
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, Fund or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds property actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaserthe responsibility of the Seller.
(g) Purchaser and the Company, jointly and severally, The Seller shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent ' fees, incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after ; provided that the receipt by Purchaser shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any such loss, liability or expense incurred as a result of notice gross negligence, bad faith or willful misconduct on the part of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofPurchaser.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ twenty Business Days' prior written notice of resignation to Purchaser the Seller and the CompanyPurchaser. Purchaser The Seller and the Company Purchaser may at any time jointly remove the Escrow Agent by giving ten (10) business days Business Days' prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agentEscrow Agent, which shall be a bank or trust company having capital and surplus assets in excess of at least $10 2 billion, shall be appointed by the Seller and the Purchaser and Company by a written instrument executed by Purchaser the Seller and the Company Purchaser and delivered to the Escrow Agent and to such successor escrow agent Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor escrow agentEscrow Agent, without any further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder by of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of the Seller, the Purchaser and or the Companysuccessor Escrow Agent, execute and deliver to such successor escrow agent Escrow Agent all of its the right, title and interest hereunder in and to the Escrow Account Fund of such predecessor Escrow Agent and all of its other rights hereunderhereunder of such predecessor Escrow Agent. If no successor escrow agent Escrow Agent shall have been appointed within twenty (20) business days Business Days of a notice of resignation by the Escrow Agent, the Escrow Agent’s 's sole responsibility shall thereafter be to hold the Escrow Account Fund until the earlier of its receipt of designation of a successor escrow agentEscrow Agent, a joint written instructions instruction by Purchaser the Seller and the Company Purchaser and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable for any action taken or omitted by it in good faith and its liability hereunder shall be limited to liability for gross negligence or willful misconduct on its part. The Company and the Purchaser agree to save harmless, indemnify and defend the Escrow Agent for, from and against any loss, damage, liability, judgment, cost and expense whatsoever, by reason of, or on account of, any misrepresentation made to it or its status or activities as Escrow Agent under this Agreement except for any loss, damage, liability, judgment, cost or expense resulting from gross negligence or willful misconduct on the performance part of such duties and obligations as are specifically set forth in the Escrow Agent. The Escrow Agent shall not be responsible for any failure or inability of any of the parties to perform or comply with the provisions of this Agreement.
(c) , or the agreements delivered in connection herewith. In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely in good faith upon any documentdocument (including facsimile transmitted copies of documents), instrument or signature believed by it in good faith to be genuine and to be signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.. The Escrow Agent may assume in good faith that any person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so. Each party hereto acknowledges that (a) the Escrow Agent is not acting as legal counsel to such party in any manner or respect in connection with the transactions contemplated by this Agreement, and (b) the Escrow Agent is serving as an accommodation to the parties hereto. Each party further acknowledges that the Escrow Agent has acted, and acts, as legal counsel in certain matters to H.J. Meyers & Co., Inc. ("Meyers") Each party hereto waives all cl▇▇▇▇ ▇▇ ▇▇▇ nature of confli▇▇ ▇▇ interest against the Escrow Agent and further agrees that in the event of any dispute which arises hereunder, or otherwise between a party and Meyers, the Escrow Agent shall be free to represent Meyers. ▇▇ ▇▇ understood and further agreed that the Escrow ▇▇▇▇▇ shall:
(a) be under no duty to enforce payment of any subscription that is to be paid to and held by it hereunder;
(b) promptly notify the Purchaser and the Company of any discrepancy between the amounts set forth on any statement delivered by the Purchaser and/or the Company and the sum or sums delivered to it therewith;
(c) be under no duty to accept funds, checks, drafts or instruments for the payment of money from anyone other than the Company or the Purchaser, or to give any receipt therefor except to the Company or the Purchaser, with a copy in each case to the Company;
(d) The Escrow Agent be protected in acting upon any notice, request, certificate, approval, consent or other paper reasonably believed by it to be genuine and to be signed by the proper party or parties (including, but not limited to, copies of documents transmitted by facsimile);
(e) be permitted to consult with counsel of its choice, and shall not be liable for any error of judgment, or any action taken, suffered suffered, or omitted to be taken, hereunder except in the case of its gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection accordance with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement advice of such claim. In no event shall Purchaser or the Company be liable under counsel; provided, however, that nothing in this indemnity for subsection (e), nor any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation action taken by the Escrow Agent, or suffered or omitted by it in accordance with the advice of any counsel, shall relieve the Escrow Agent from liability for any claims that are occasioned by its gross negligence or willful misconduct;
(f) not be bound by any modification, amendment, termination, cancellation, or recission of this Agreement, unless the same shall be in writing and signed by it;
(g) be entitled to refrain from taking any action other than to keep all property held in escrow if it (i) shall be uncertain concerning its duties or rights hereunder, or (ii) shall have received claims or demands from any party, or (iii) shall have received instructions from the Purchaser and/or the Company which, in the Escrow Agent’s 's opinion, are in conflict with any of the provisions of this Agreement, until it shall have received a final judgment by a court of competent jurisdiction;
(h) have no liability for following the instructions herein or expressly provided for herein, or the written instructions given by the Purchaser and/or the Company; and
(i) have the right, at any time, to resign hereunder by giving written notice of its resignation to all other parties hereto at least three (3) business days prior to the date specified for such resignation to take effect, and upon the effective date of such resignation all cash and other payments and all other property then held by the Escrow Agent hereunder shall be delivered by it to such person as may be designated in writing by the other parties executing this Agreement, whereupon the Escrow Agent's obligations hereunder shall cease and terminate. If no such person has been designated by such date, all obligations of the Escrow Agent hereunder shall, nevertheless, cease and terminate. The Escrow Agent's sole responsibility thereafter shall thereafter be to hold keep safely all property then held by it and to deliver the Escrow Account until same to a person designated by the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of other parties executing this Agreement or in accordance with its termsthe directions of a final order or judgment of a court of competent jurisdiction.
Appears in 1 contract
Sources: Securities Purchase Agreement (Greenman Technologies Inc)
Escrow Agent. To induce the Escrow Agent to act hereunder, it is ------------ further agreed by the undersigned that:
(a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Companypursuant to an order of a court of competent jurisdiction, the Escrow Agent shall not sell, transfer or otherwise dispose of, of in any manner, manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdictionFund.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions 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.
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, Fund or income thereon, nor or as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount and payable at the times specified in Schedule A Annex B to this Agreement and shall be reimbursed upon request for all reasonable expenses, disbursements and advances, including reasonable fees fees, expenses and disbursements of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out performance of its duties under this Agreement. All such The Warranty Provider and the Adviser shall each pay one-half of the fee specified in Annex B and all other fees and expenses shall be paid by Purchaserreferred to in the two preceding sentences.
(g) Purchaser The Escrow Agent shall provide to the Warranty Provider and the CompanyAdviser monthly statements identifying transactions, jointly transfers or holdings of the Escrow Fund and severally, each such statement shall be deemed to be correct and final upon receipt thereof by the Warranty Provider and the Adviser unless the Escrow Agent is notified in writing by the Warranty Provider and/or the Adviser to the contrary within thirty (30) Business Days of the date of such statement.
(h) Each of the Warranty Provider and the Adviser shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent ' fees, incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and Agent, arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after .
(i) In the receipt by event that a dispute arises between the Warranty Provider and the Adviser with respect to the disposition or disbursement of the Escrow Fund, or any portion thereof, which dispute each of the Warranty Provider and the Adviser notifies the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreementcannot be resolved, the Escrow Agent shall promptly notify Purchaser be permitted to interplead the Escrow Fund, or any portion thereof, into a court of competent jurisdiction, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded Escrow Fund or portion thereof. The Warranty Provider and the Company of the commencement of Adviser agree to pursue any redress or recourse in connection with such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against a dispute without making the Escrow Agent unless Purchaser and a party to the Company shall have been promptly notified by same other than in the case of the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense andAgent's gross negligence, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofbad faith or willful misconduct.
(hj) The Escrow Agent may at any time resign by giving thirty (30) business days’ Business Days prior written notice of resignation to Purchaser the Warranty Provider and the CompanyAdviser. Purchaser The Warranty Provider and the Company Adviser may at any time jointly remove the Escrow Agent by giving ten (10) business days prior Business Days' written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital assets in excess of (US)$1 billion, and surplus of at least $10 billionwhich shall be reasonably acceptable to the Adviser, shall be appointed by Purchaser and Company the Warranty Provider by a written instrument executed by Purchaser and the Company Warranty Provider 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 by of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the CompanyAdviser, the Warranty Provider or the successor escrow agent, execute and deliver to such successor escrow agent all of its the right, title and interest hereunder in and to the Escrow Account Fund of such predecessor Escrow Agent and all of its other rights hereunderhereunder of such predecessor Escrow Agent. If no successor escrow agent shall have been appointed within twenty thirty (2030) business days Business Days of a notice of resignation by the Escrow AgentAgent or of a notice of removal by the Warranty Provider and the Adviser, as applicable, the Escrow Agent’s 's sole responsibility shall thereafter be to hold the Escrow Account Fund until the earlier of its receipt of designation of a successor escrow agent, a joint written instructions instruction by Purchaser the Warranty Provider and the Company Adviser and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Financial Warranty Agreement (Oppenheimer Principal Protected Trust Iii)
Escrow Agent. (a) Except as A. The duties and responsibilities of the Escrow Agent shall be limited to those expressly contemplated by set forth in this Agreement or by joint written instructions from Purchaser and Exhibit A hereto. No implied duties of the Escrow Agent shall be read into this Agreement. Subject to the terms and conditions of this Agreement and the CompanyMerger Agreement between the Parties and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Executive of eDiets, the Escrow Agent shall not sellbe subject to, transfer or otherwise dispose obliged to recognize any other agreementbetween, or direction or instruction of, in any manner, or all the parties hereto.
B. In the event that all or any portion a part of the Escrow FundsFund is attached, except garnished, levied or enjoined pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations order, decree, writ, judgment or arbitration award, or the delivery of the Escrow Fund is stayed or enjoined by a court order, decree, writ, judgment or arbitration award, Escrow Agent is hereby expressly authorized to comply with any court order, decree, writ, judgment or arbitration award and such compliance shall be determined solely by this Agreement, and not render the Escrow Agent liable to any Party or person as a result of such compliance.
C. Escrow Agent shall not be liable except to any Party or person for damages, losses or expenses incurred by a Party or person resulting from any act or omission of Escrow Agent, provided, however, that any damages, losses or expenses that result from the performance Escrow Agent's criminal act, willful misconduct or gross negligence will result in liability. Without limiting the foregoing, Escrow Agent, shall not incur any liability with respect to any act (i) undertaken or not undertaken in good faith, upon the advice of such Escrow Agent's counsel, with respect to Escrow Agent's duties and obligations as are specifically set forth responsibilities under this Agreement or the Merger Agreement, (ii) taken or not undertaken, in reliance upon any instrument, including any written notice or instruction provided for in this Agreement or the Merger Agreement, including but not limited to, due execution, truth and accuracy and validity and effectiveness of the instrument, that Escrow Agent in good faith believes to be genuine and to conform to the provisions of this Agreement or the Merger Agreement.
(c) In the performance of its duties hereunderD. Unless specifically provided for herein, the Escrow Agent shall be entitled promptly collect any monies, checks or other items, including but not limited to rely upon any document, instrument or signature believed by it the cash consideration payments le set forth in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and section 1.6 (c) (i)-(v) of the Merger Agreement. Escrow Agent shall not be required to investigate the truth or accuracy (i) notify a Party of any statement contained payment made or the date of maturity of any instrument deposited or received other than in the ordinary course of Escrow Agent's business, or (ii) take any legal action to enforce payment of any draft, check, note or security deposited or received. In the event that any funds, including funds which have been cleared and credited to the Escrow Fund are later determined to be uncollected after the funds have been released by the Escrow Agent pursuant to this Agreement, the Party to whom such document funds were delivered will repay to the Escrow Fund the aggregate sum of monies released. The Parties acknowledge that its obligation in the preceding sentence shall survive the termination of this Agreement. Escrow Agent will not be required to lend to, or instrumentadvance, or pay out of its own funds any sums whatsoever for the account of any Party.
(d) The E. Provided that the Escrow Agent is otherwise lawfully discharging its duties, it shall not be responsible for the sufficiency, accuracy, form, execution, validity or genuineness, of documents, or of any endorsement or lack of endorsement, or for any description or lack of description therein. Nor shall the Escrow Agent be liable to any Party for or on account of the identity, authority or rights of any person executing, depositing or delivering or purporting to execute, deposit or deliver any document, or endorsement or this Agreement. Further, Escrow Agent shall not be liable to any Party on account of or by reason of forgeries, false representations, or the exercise of its discretion in any particular manner, nor shall the Escrow Agent be liable for any mistake of fact or of law or any error of judgmentjudgment or for any act or omission, or any action taken, suffered or omitted to be taken, hereunder except in the case as a result of its gross negligence, bad faith criminal act or willful misconduct.
(e) Except F. In the event of a dispute between the parties hereto sufficient in the discretion of Escrow Agent to justify its doing so, Escrow Agent shall be entitled at the expense of the Escrow Fund to tender the Escrow Fund into the registry or custody of any Court of competent jurisdiction, to initiate such legal proceedings at the expense of the Escrow Fund as provided hereinit deems appropriate, and thereupon to be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in any such court as Escrow Agent shall determine to have jurisdiction over the Escrow Fund. The filing of any such legal proceedings shall not deprive Escrow Agent of its compensation hereunder earned prior to such filing.
G. In the event of a dispute between the parties, which in the discretion of Escrow Agent requires action on behalf of itself or the Escrow Fund, the Escrow Agent shall have no duty as to at the collection or protection expense of the Escrow FundsFund (i) initiate, on behalf of the Escrow Fund, legal proceedings; (ii) follow the direction of an arbitrator in accordance with Section 18.8 of the Merger Agreement or income thereon, nor a court of competent jurisdiction and deposit the Escrow Fund with any person or court so ordered and (iii) initiate such legal proceedings at the as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services it deems appropriate to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement discharged from all duties and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties liabilities under this Agreement. All Any such fees and expenses legal action may be brought in any such court as Escrow Agent shall be paid by Purchaserdetermine to have jurisdiction over the Escrow Fund. The filing of any such legal proceedings shall not deprive Escrow Agent of its compensation hereunder earned prior to such filing.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify H. Provided that the Escrow Agent for, and hold is otherwise lawfully discharging its duties it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees shall not be under a duty to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or take legal action in connection with the acceptance ofthis Agreement or its enforcement, nor shall it be under a duty to appear in, prosecute or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the defend any action or legal proceeding that would cause Escrow Agent of notice of the commencement of to incur any claim against the Escrow Agent with respect costs or expenses unless such costs and expenses are indemnifiable pusuant to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofSection 3 below.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. In order to induce the Escrow Agent to hold and disburse the Escrow Shares as required by this Agreement, Purchaser and Seller hereby agree that:
(a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser The functions and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, with respect to disbursements hereunder are those of an independent contractor and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically include only those set forth in this Agreement. The Escrow Agent is not entitled to act in any manner whatsoever except in accordance with the terms and conditions of this Agreement or pursuant to written instructions or demands given in accordance with such terms and conditions.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(db) The Escrow Agent shall not be liable for any error loss or damage resulting from any of judgmentthe following:
(i) Any default, error, action or omission of any action takenother party.
(ii) The expiration of any time limit or other delay, suffered unless such time limit was known to the Escrow Agent and the resulting loss was solely caused by failure of the Escrow Agent to proceed in accordance herewith.
(iii) Lack of authenticity, sufficiency and effectiveness of any documents delivered to it and lack of genuineness of any signature or omitted authority of any person to be taken, hereunder except sign any such document.
(iv) Any increase or decrease in the case value of the Escrow Shares.
(v) Compliance by the Escrow Agent with any and all legal process, writs, orders, judgments and decrees of any court whether issued with or without jurisdiction and whether or not subsequently vacated, modified, set aside or reversed.
(vi) The Escrow Agent's assertion or failure to assert any cause of action or defense in any judicial, administrative or other proceeding either in its own interest or in the interest of any other party or parties, provided the Escrow Agent shall have furnished timely written notice of such proceeding to the other parties hereto.
(c) The Escrow Agent shall not be liable, absent gross negligence, bad faith for its failure to inquire into the authenticity of any written instructions or willful misconductother documents delivered to it as required by this Agreement or its failure to inquire as to the genuineness of any signature or authority of any person to issue such instructions or execute such other documents.
(ed) Except as provided hereinIf there is any dispute regarding the disbursement of the Escrow Share Certificates, the Escrow Agent shall have no duty as continue to the collection or protection hold all of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually Share Certificates and Stock Powers in its possession.
possession until directed to disburse the same in accordance with (fi) As compensation for its services to be rendered under this Agreementthe joint instructions of Purchaser and Seller or (ii) a final, unappealable judgment of a court of competent jurisdiction. In lieu of the foregoing, the Escrow Agent shall receive may tender the Escrow Shares to a fee court of competent jurisdiction and commence an action of interpleader between the parties in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreementdispute. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the CompanySeller agree, jointly and severally, shall reimburse and to indemnify the Escrow Agent foragainst all court costs and reasonable attorney’s fees in connection with any litigation regarding this Escrow Agreement other than any such litigation arising from the negligence of or breach of this Agreement by the Escrow Agent. The Escrow Agent has acted as legal counsel for the Purchaser, and hold it harmless againstmay continue to act as legal counsel for the Purchaser from time to time, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees notwithstanding its duties as the Escrow Agent hereunder. The Company and the Seller consent to the extent incurred without fraud, gross negligence, bad faith or willful misconduct Escrow Agent acting in such capacity as legal counsel for the Purchaser and waive any claim that such representation represents a conflict of interest on the part of the Escrow Agent Agent. The Company and arising out of, or in connection with the acceptance of, or Seller understand that the performance of, its duties Purchaser and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of are relying explicitly on the commencement of any claim against the foregoing provision in entering into this Escrow Agreement.
(e) The Escrow Agent with respect may resign for any reason, upon not less than thirty (30) days prior written notice to which the Escrow Agent demands indemnification under parties to this Agreement, which notice shall specify the date and time as of which such resignation shall become effective. Upon the effectiveness of such resignation, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable deliver all property in its possession under this indemnity for Agreement to any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed in writing by ▇▇▇▇▇▇▇▇▇ and the Escrow Agent delivers the Escrow Funds Seller as directed in written directions signed by ▇▇▇▇▇▇▇▇▇ and Seller, or if no successor escrow agent has been appointed, to any court of competent jurisdiction in Los Angeles County, California. Upon either such successor. If delivery, the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 released from any further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of further liability under this Agreement in accordance with its termsAgreement.
Appears in 1 contract
Sources: Asset Purchase Agreement
Escrow Agent. ▇▇▇▇▇▇ and Buyer hereby appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Attorney of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as Escrow Agent pursuant to the terms of this agreement, to do the following:
(a) Except as expressly contemplated by to receive and execute a copy of this Agreement or by joint written instructions from Purchaser and the Companyagreement, the Escrow Agent shall not selldeed from Seller to the Buyer, transfer or otherwise dispose of, in any mannerand evidence of title (title insurance commitment), all release of liens or any portion of the Escrow Funds, except pursuant other instruments to an order of a court of competent jurisdictionbe filed.
(b) to prepare closing statements which the parties hereto agree to sign as part of their obligation herein.
(c) to deliver the deed to the Buyer at time of closing, and if so instructed, file all documents with the Office of the Register of Deeds.
(d) to receive from Buyer and Seller the costs of closing.
(e) to pay all costs associated with this transaction, including abstracting, title insurance premiums, transfer tax on the deed, filing fees, legal fees, escrow fee, and real estate taxes, existing encumbrances, and all liens and mortgages, if any. Each party shall be responsible for their own respective attorney’s fees involved in this transaction.
(f) to collect a closing fee of $600.00, which shall be paid one-half by Seller and one- half by ▇▇▇▇▇.
(g) to remit unto Seller all sums to Seller, after deducting any sums required to be paid as set forth herein.
(h) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and confined to the items specifically provided herein.
(i) Should the Escrow Agent shall not be liable except for the performance become aware of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, conflicting demands or claims with respect to the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy rights of any statement contained in any such document or instrument.
(d) The Escrow Agent shall not be liable for any error of judgmentthe parties hereto, or any action taken, suffered money or omitted to be taken, hereunder except in the case of its gross negligence, bad faith property deposited herein or willful misconduct.
(e) Except as provided hereinaffected thereby, the Escrow Agent shall have no duty as the right to the collection or protection of the Escrow Fundsdiscontinue any further acts, or income thereonuntil such conflict is resolved, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request further have the right to commence or defend any action or proceedings for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement determination of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofconflict.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Real Estate Purchase Agreement
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint joint-written instructions from Purchaser Parent and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow FundsFund, except pursuant to an order of a court of competent jurisdictionjurisdiction or a written instrument or agreement signed by each of Parent and the Company.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) 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.
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, Fund or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be divided equally between and paid by Purchasereach of Parent and the Company.
(g) Purchaser Parent and the Company, jointly and severally, 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 to the extent and costs, incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement; provided that such loss, the Escrow Agent liability or expense shall promptly notify Purchaser be divided equally between Parent and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofCompany.
(h) The Escrow Agent may at any time resign by giving thirty (30) twenty business days’ days prior written notice of resignation to Purchaser Parent and the Company. Purchaser Parent and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital its principal executive offices in California or New York and surplus assets in excess of at least $10 billion500 million, shall be appointed by Purchaser and Company Parent by a written instrument executed by Purchaser Parent and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser Parent and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account Fund and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account Fund until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser Parent and the Company and or termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated permitted by this Agreement or by joint written instructions from Purchaser Parent and the CompanyStockholder Representative, the Escrow Agent shall not sell, transfer or otherwise dispose of, of in any manner, manner all or any portion of the Escrow FundsShares, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable liable, except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, hereunder 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 and in accordance with the opinion of such counsel.
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereonShares, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds Escrow Shares actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee fees in the amount amounts specified in Schedule A B to this Agreement and shall be reimbursed upon request for all reasonable expenses, disbursements and advances, including reasonable fees of outside counsel, if any, reasonably incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid 50% by PurchaserParent and 50% by the Stockholder Representative. The Escrow Agent hereby acknowledges receipt of payment of fees payable hereunder from the date hereof to the first anniversary of this Agreement. Any fees that are outstanding at the time of termination of this Agreement either may be deducted from the Escrow Account prior to making the final distribution or the Escrow Agent may withhold sufficient assets from the final distribution to cover the escrow fee then due, in the sole discretion of the Escrow Agent.
(g) Purchaser Parent and the Company, jointly and severally, Stockholder Representative shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent fees, incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after ; provided, that such loss, liability or expense shall be divided equally between Parent, on the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreementone hand, the Escrow Agent shall promptly notify Purchaser and the Company of Stockholder Representative, on the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofother.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days20 Business Days’ prior written notice of resignation to Purchaser Parent and the CompanyStockholder Representative. Purchaser Parent and the Company Stockholder Representative may at any time jointly remove the Escrow Agent by giving ten (10) business days prior 10 Business Days’ written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agentEscrow Agent, which shall be a bank or trust company having capital (or, in the case of a subsidiary of a bank holding company, its parent shall have) assets in excess of $500 million, and surplus of at least $10 billionwhich shall be reasonably acceptable to the Stockholder Representative, shall be appointed by Purchaser and Company Parent by a written instrument executed by Purchaser Parent and the Company Stockholder Representative and delivered to the Escrow Agent and to such successor escrow agent Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor escrow agentEscrow Agent, without any further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder by of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the CompanyStockholder Representative, Parent or the successor Escrow Agent, execute and deliver to such successor escrow agent Escrow Agent all of its the right, title and interest hereunder in and to the Escrow Account Shares held by such predecessor Escrow Agent and all of its other rights hereunder, and records relating hereto, of such predecessor Escrow Agent. If no successor escrow agent Escrow Agent shall have been appointed within twenty (20) business days 20 Business Days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account Shares until the earlier of its receipt of designation of a successor escrow agentEscrow Agent, a joint written instructions instruction by Purchaser Parent and the Company Stockholder Representative and termination of this Agreement in accordance with its terms.
(i) If any controversy arises between the parties to this Agreement concerning the subject matter of this Agreement, its terms or conditions, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold all documents, assets and funds and may wait for settlement of any such controversy by final appropriate legal proceedings or other means. In such event, the Escrow Agent will not be liable for interest or damage. Furthermore, the Escrow Agent may, at its option, file an action of interpleader requiring the parties other than the Escrow Agent to answer and litigate any claims and rights among themselves. The Escrow Agent is authorized, at its option, to deposit with the Clerk of the Court or the arbitrator, as applicable, all documents and funds held in escrow, except all costs, expenses, charges and reasonable attorneys’ fees incurred by the Escrow Agent due to the interpleader action and which the parties agree to pay. Upon initiating such interpleader action, the Escrow Agent shall be fully released and discharged of and from all obligations and liability imposed by the terms of this Agreement.
Appears in 1 contract
Sources: Escrow Agreement (Patriot Coal CORP)
Escrow Agent. 6.1. To induce the Escrow Agent to act hereunder, it is further agreed by each of Parent and Issuer, the Representative and the Trustee that:
(a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in be under any manner, all or any portion of duty to give the Escrow Funds, except pursuant Amount held by it hereunder any greater degree of care than it gives to an order of a court of competent jurisdiction.amounts held in trust for its general banking customers;
(b) this Agreement expressly sets forth all the duties of the Escrow Agent. The Escrow Agent shall not be bound by (and shall be deemed not to have notice of) the provisions of any other agreement entered into by or involving Parent and Issuer (including the provisions of Clause 12 below) except this Agreement (other than the provisions of Clause 12 below which shall not apply to the Escrow Agent) and any Instruction and no implied duties and or obligations of the Escrow Agent shall be determined solely read into this Agreement or any Instruction as a result of any such other agreement, whether or not such agreement has been previously disclosed to the Escrow Agent;
(c) the Escrow Agent is under no duty to ensure that funds withdrawn from the Escrow Accounts are actually applied for the purpose for which they were withdrawn;
(d) neither the Escrow Agent nor any of its respective officers, employees or agents shall be required to make any distribution (other than of the Escrow Amount) to the extent that the Escrow Amount is insufficient and shall incur no liability whatsoever from any non-distribution in such circumstances;
(e) Each of Parent and Issuer, the Representative and the Trustee unconditionally agree to the call-back arrangement and the use of any form of telephonic or electronic monitoring or recording by the Escrow Agent according to the Escrow Agent’s standard operating procedures or as the Escrow Agent deems appropriate for security and service purposes, and that such recording may be produced as evidence in any proceedings brought in connection with this Agreement, and ;
(1) the Escrow Agent shall not be liable except to any person or entity including but not limited to any shareholder of Parent for the any loss, liability, claim, debts, action, damages or expenses arising out of or in connection with its performance of such duties and or its failure to perform any of its obligations under this Agreement save as are specifically set forth caused by its own gross negligence or willful default;
(i) the Escrow Agent shall not be responsible for any loss or damage, or failure to comply or delay in complying with any duty or obligation, under or pursuant to this Agreement arising as a direct or indirect result of any Force Majeure Event or any event if where, in the reasonable opinion of the Escrow Agent, performance of any duty or obligation under or pursuant to this Agreement would or may be illegal or would result in the Escrow Agent being in breach of any law, rule, regulation, or any decree, order or judgment of any court, or practice, request, direction, notice, announcement or similar action (whether or not having the force of law) of any relevant government, government agency, regulatory authority, stock exchange or self-regulatory organization to which the Escrow Agent is subject;
(ii) without prejudice to the obligation of the Escrow Agent to transfer all or part of the Escrow Amount in accordance with this Agreement, in the absence of fraud, gross negligence or willful default, the liability of the Escrow Agent hereunder shall be limited to the Escrow Amount; and
(iii) notwithstanding the foregoing, under no circumstances will the Escrow Agent be liable to any Party for any indirect, incidental or consequential loss or damage (being inter alia, loss of business, goodwill, opportunity or profit) even if advised of such loss or damage;
(g) Parent and Issuer shall jointly and severally indemnify and keep the Escrow Agent (and, without limitation, its directors, officers, agents and employees) indemnified and hold each of them harmless from and against any and all losses, liabilities, claims, debts, actions, damages, fees and expenses, (including fees and disbursements of professional advisers (including lawyers)), arising out of or in connection with the Escrow Agent’s performance of its obligations under this Agreement, including as a result of the Escrow Agent’s appointment under this Agreement, save as are caused by its own fraud, gross negligence or willful default.
(ch) In Without prejudice to Clause 6.1(i), the performance Escrow Agent shall not be obliged to make any payment or otherwise to act on any Instruction provided to it under this Agreement if it is unable:
(i) to verify any signature pursuant to any request or Instruction against the specimen signature provided for the relevant Authorized Representative hereunder; and
(ii) to validate the authenticity of its duties hereunder, the request by telephoning a Call-back Contact who has not executed the relevant request or Instruction as an Authorized Representative of the relevant Party;
(i) the Escrow Agent shall be entitled to rely upon any documentorder, judgment, decree, certification, demand, notice or other written instrument (including any Instruction or any requirement and/or request for information delivered by a party referred to in Clause 6.2 below) delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and signed by may assume that any party hereto person purporting to give receipt or an authorized officer advice or agent thereof and shall not be required to investigate the truth or accuracy of make any statement contained or execute any document in any such document or instrumentconnection with the provisions hereof has been duly authorized to do so.
(dj) The Parent and the Issuer acknowledge that the Escrow Agent is authorized to rely conclusively upon any Instructions received by any means agreed hereunder or otherwise agreed by all parties hereto. In furtherance of the foregoing:
(i) without prejudice to Clause 6.1(m), the Escrow Agent may rely and act upon an Instruction if it reasonably believes it contains sufficient information and has emanated from the Authorized Representative in which case, if it acts in good faith on such Instructions, such Instructions shall be binding on each Party (as the case may be) and the Escrow Agent shall not be liable for doing so. The Escrow Agent is not responsible for errors or omissions made by Parent or Issuer resulting from fraud or the duplication of any error of judgment, Instruction by Parent or any action taken, suffered or omitted to be taken, hereunder except in the case of its gross negligence, bad faith or willful misconduct.Issuer;
(eii) Except as provided hereinnotwithstanding any other provision hereof, the Escrow Agent shall have no duty as the right to refuse to act on any Instruction where it reasonably doubts its contents, authorization, origination or compliance with this Agreement and will promptly notify each of Parent and Issuer, the collection or protection Representative and the Trustee of its decision;
(iii) if Parent and/or Issuer informs the Escrow FundsAgent that it wishes to recall, cancel or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreementamend an Instruction, the Escrow Agent shall receive a fee in the amount specified in Schedule A is not obliged but will use its reasonable efforts to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees comply to the extent incurred without fraud, gross negligence, bad faith it is practicable to do so before the release or willful misconduct on the part transfer of the Escrow Agent and arising out ofAmount. Subject to item (ii) above, any such recall, cancellation or in connection with amendment to the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt Instructions acted upon by the Escrow Agent of notice of shall be binding on the commencement of any claim against the Escrow Agent with respect party who issues such Instructions; and
(iv) all Instructions to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser be sent in accordance with Clause 11. Parent and Issuer expressly acknowledge that they are fully aware of and agree to accept the Company risks of the commencement of such claim. In no event shall Purchaser error, security and privacy issues and fraudulent activities associated with transmitting Instructions through facsimile or the Company be liable under this indemnity any other means requiring manual intervention, except for any claim against such risks resulting from the Escrow Agent’s fraud, gross negligence or willful default;
(k) the Escrow Agent unless Purchaser and may consult lawyers or other appropriate professional advisers over any question as to the Company shall have been promptly notified by the Escrow Agent provisions of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claimthis Agreement or its duties. The Escrow Agent shall have no liability for any action subsequently taken by it in accordance with the rightadvice of its lawyers or other professional advisers with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in accordance with such advice;
(l) this paragraph (1), but paragraph (f), paragraph (g), paragraph (i) and paragraph (j), above, shall be under survive notwithstanding any termination of this Agreement or the resignation or replacement of the Escrow Agent;
(m) the Escrow Agent shall have no obligation, to employ separate counsel responsibility for the accuracy or appropriateness of the contents of any ruling (including the merits of such ruling) of arbitrators or any third party contemplated in any such suit other document to which each of Parent and participate in Issuer, the defense thereof.Representative or the Trustee are party as a means to resolve disputes and may rely without any liability upon the contents;
(hn) The Escrow Agent shall be entitled to refuse to act and to retain the Escrow Amount until required to release it in accordance with Clause 5.1 or until the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses, liabilities, claims, debts, actions, damages, fees and expenses which it may at incur by reason of so acting. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem necessary. The reasonable costs and reasonable out-of-pocket expenses (including reasonable lawyers’ fees and expenses) incurred in connection with such proceeding shall be paid by the Parent and Issuer;
(o) no printed or other matter in any time resign language (including without limitation prospectuses, offering memoranda, notices, reports and promotional material) which mentions the Escrow Agent’s name or the rights, powers, or duties of the Escrow Agent shall be publicly issued by giving Parent, Issuer or on their behalf other than in an offering memoranda relating to the Notes unless the Escrow Agent shall first have given its express written consent thereto; and
(p) except to the extent provided otherwise under any applicable law, in the absence of assignment of the Escrow Agent’s obligations hereunder to any of its affiliates:
(i) the obligations and duties of the Escrow Agent are binding only on the Escrow Agent and are not obligations or duties of any affiliate of the Escrow Agent; and
(ii) the rights of Parent and Issuer with respect to the Escrow Agent extend only to such Escrow Agent and, except to the extent required under any applicable law, do not extend to any affiliate of the Escrow Agent.
6.2. The Escrow Agent will treat information relating to each Party as confidential, but (unless consent is prohibited by law) Parent and Issuer consent to the transfer and disclosure by the Escrow Agent of any information relating to each Party to and between branches, subsidiaries, representative offices, affiliates and agents of the Escrow Agent and third parties selected by any of them, wherever situated, for confidential use in connection with the provision of any service contemplated hereunder. The Escrow Agent and any branch, subsidiary, representative office, affiliate, agent or third party may transfer and disclose any such information to a third party only as is required by any court, legal process or banking, regulatory or examining authority (whether governmental or otherwise) including any auditor of a Party.
6.3. Any statement or report provided by the Escrow Agent on a regular basis in respect of the Escrow Accounts or any transactions or transfers of the Escrow Amount shall be deemed to be correct and final upon receipt thereof by each Party unless such Party notifies the Escrow Agent in writing to the contrary within thirty (30) business days’ prior written notice calendar days from the date of resignation to Purchaser such statement or report.
6.4. For the purposes of the contacts between the Parties via telephone, each of Parent, Issuer, the Company, Representative, and the CompanyTrustee shall provide the list of Call-back Contacts as specified in Part 2 of Schedule 2 (the “Call-back Contacts”). Purchaser Each Party referenced in this paragraph acknowledges and accepts the Company may at risks associated with any time jointly remove appointment of the same person(s) to act as their respective Authorized Representative and Call-back Contact. Parent and Issuer further acknowledge and agree that the Escrow Agent by giving ten (10) business days prior written notice signed by each may rely upon the confirmations or responses of them anyone purporting to be the Escrow Agent; provided that Call-back Contact in answering the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to telephone call-back of such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company and delivered to the Escrow Agent and to that such successor escrow agent and, thereupon, the resignation Party shall assume all risks and losses (if any) resulting from such confirmations 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its termsresponses.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement ------------ or by joint written instructions from Purchaser Parent and the CompanyShareholders' Representative, the Escrow Agent shall not sell, transfer or otherwise dispose of, of in any manner, manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be 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 and in accordance with the opinion of such counsel.
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, Funds or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by PurchaserParent.
(g) Purchaser Parent and the Company, jointly and severally, Shareholders shall reimburse and indemnify the Escrow Agent agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent ' fees, incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after ; provided that such loss, liability or expense shall be divided equally between Parent, on the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreementone hand, the Escrow Agent shall promptly notify Purchaser and the Company of Shareholders on the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofother.
(h) The Escrow Agent may at any time resign by giving thirty (30) 20 business days’ ' prior written notice of resignation to Purchaser Parent and the CompanyShareholders' Representative. Purchaser Parent and the Company Shareholders' Representative may at any time jointly remove the Escrow Agent by giving ten (10) business days prior days' written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agentEscrow Agent, which shall be a bank or trust company having capital its principal executive offices in California or New York and surplus assets in excess of at least $10 billion500 million, and which shall be reasonably acceptable to the Shareholders' Representative, shall be appointed by Purchaser and Company Parent by a written instrument executed by Purchaser Parent and the Company Shareholders' Representative and delivered to the Escrow Agent and to such successor escrow agent Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor escrow agentEscrow Agent, without any further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder by of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the CompanyShareholders' Representative, Parent or the successor Escrow Agent, execute and deliver to such successor escrow agent Escrow Agent all of its the right, title and interest hereunder in and to the Escrow Account Funds of such predecessor Escrow Agent and all of its other rights hereunderhereunder of such predecessor Escrow Agent. If no successor escrow agent Escrow Agent shall have been appointed within twenty (20) 20 business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s 's sole responsibility shall thereafter be to hold the Escrow Account Funds until the earlier of its receipt of designation of a successor escrow agentEscrow Agent, a joint written instructions instruction by Purchaser Parent and the Company Shareholders' Representative and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Escrow Agreement or by joint written instructions from Purchaser and the CompanyFund, the Escrow Agent shall not sell, transfer or otherwise dispose of, of in any manner, manner all or any portion of the Escrow FundsAccount, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Escrow Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Escrow Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature signature, or any other writing believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof of the Fund, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrumentinstrument or determine the propriety or validity of service thereof.
(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 negligence or willful misconduct. .
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of interest in the Escrow Funds, or income thereon, nor Account but is serving as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possessionescrow holder only and has only possession thereof.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent The Fund shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ ' fees to the extent and expenses, incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Escrow Agreement. Promptly after Anything in this Escrow Agreement to the receipt by contrary notwithstanding, in no event shall the Escrow Agent of notice of the commencement be liable for special, indirect or consequential loss or damage of any claim against kind whatsoever (including but not limited to lost profits), even if the Escrow Agent with respect to which has been advised of the likelihood of such loss or damage and regardless of the form of action.
(g) In the event of ambiguity in the provisions governing the Escrow Account or uncertainty on the part of the Escrow Agent demands indemnification under this Agreementas to how to proceed, such that the Escrow Agent, in its sole and absolute judgment, deems it necessary for its protection so to do, the Escrow Agent shall promptly notify Purchaser and the Company may refrain from taking any action other than to retain custody of the commencement Escrow Account until it shall have received written instructions signed by an authorized person of such claim. In no event shall Purchaser the Fund, or the Company be liable under this indemnity for any claim against to deposit the Escrow Agent unless Purchaser Account with a court of competent jurisdiction and the Company shall thereupon to have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense no further duties or responsibilities in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofconnection therewith.
(h) The Escrow Agent may at any time resign by giving thirty (30) three business days’ ' prior written notice of resignation to Purchaser and the CompanyFund. Purchaser and the Company The Fund may at any time jointly remove the Escrow Agent by giving ten (10) three business days prior days' written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, either, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall Escrow Agent may be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company Fund and delivered to the Escrow Agent and to such successor escrow agent Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor escrow agentEscrow Agent, without any further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder by of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, shall execute and deliver to such successor escrow agent Escrow Agent all of its right, title and interest hereunder in and to the Escrow Account and the predecessor Escrow Agent shall thereupon be discharged from all of its other rights obligations under this Escrow Agreement and shall have no further duties or responsibilities hereunder. If no successor escrow agent Escrow Agent shall have been appointed within twenty (20) two business days of a notice of resignation by the Escrow Agentor removal, the Escrow Agent’s 's sole responsibility shall thereafter be be, in its sole discretion, either to hold the Escrow Account Account, without any obligation to investment or reinvest any moneys therein, until the earlier of its receipt of designation of a successor escrow agentEscrow Agent, joint a written instructions instruction by Purchaser and the Company Fund and termination of this Agreement in accordance with its termsterms or to apply to a court of competent jurisdiction for appointment of a successor Escrow Agent and after such appointment to have no further duties or obligations in connection herewith.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser the Buyer and the CompanySellers, the Escrow Agent shall not sell, transfer or otherwise dispose of, of in any manner, manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be 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 and in accordance with the opinion of such counsel.
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchasershared equally between the Buyer and the Sellers.
(g) Purchaser and the Company, jointly and severally, The Buyer shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent ' fees, incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ twenty Business Days' prior written notice of resignation to Purchaser the Sellers and the CompanyBuyer. Purchaser The Sellers and the Company Buyer may at any time jointly remove the Escrow Agent by giving ten (10) business days prior Business Days' written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agentEscrow Agent, which shall be a bank or trust company having capital its principal executive offices in the United States and surplus assets in excess of at least $10 2 billion, and which shall be reasonably acceptable to the Sellers, shall be appointed by Purchaser the Buyer and Company the Sellers by a written instrument executed by Purchaser the Sellers and the Company Buyer and delivered to the Escrow Agent and to such successor escrow agent Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor escrow agentEscrow Agent, without any further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder by of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the CompanySellers, the Buyer or the successor Escrow Agent, execute and deliver to such successor escrow agent Escrow Agent all of its the right, title and interest hereunder in and to the Escrow Account Funds of such predecessor Escrow Agent and all of its other rights hereunderhereunder of such predecessor Escrow Agent. If no successor escrow agent Escrow Agent shall have been appointed within twenty (20) business days Business Days of a notice of resignation by the Escrow Agent, the Escrow Agent’s 's sole responsibility shall thereafter be to hold the Escrow Account Funds until the earlier earliest of its receipt of designation of a successor escrow agentEscrow Agent, a joint written instructions instruction by Purchaser the Sellers and the Company Buyer and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. Title Company (a) Except as expressly contemplated by hereinafter in this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose ofsubsection, in any manner, all or any portion its ------------ capacity as holder of the ▇▇▇▇▇▇▇ Money only, being referred to as the "Escrow Funds, except pursuant to an order Agent") shall hold the ▇▇▇▇▇▇▇ Money in accordance with the terms and provisions of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, subject to the following: The Escrow Agent undertakes to perform only such duties with respect to the ▇▇▇▇▇▇▇ Money as are expressly set forth in this Agreement and no implied duties or obligations with respect to the ▇▇▇▇▇▇▇ Money shall be read into this Agreement against Escrow Agent. In performing its activities hereunder in such capacity, Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, and may assume that any person purporting to give any writing, notice, advice or instrument in connection with the provisions of this Agreement has been duly authorized to do so. Escrow Agent shall not be liable except in any manner for the performance of such duties sufficiency or correctness as to form, manner and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunderexecution, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy validity of any statement contained instrument deposited in any such document or instrument.
(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.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereonescrow, nor as to the preservation identity, authority, or right of any rights pertaining theretoperson executing the same, beyond the safe custody of any and Escrow Agent's duties in such funds actually in its possession.
(f) As compensation for its services to be rendered capacity under this Agreement shall be limited to those provided in this Agreement, the . Unless Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out discharges any of its duties under this Agreement with respect to the ▇▇▇▇▇▇▇ Money in a negligent manner or is guilty of willful misconduct with regard to its duties under this Agreement. All such fees , SELLER and expenses BUYER shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless againstfrom any and all claims, any lossliabilities, liability losses, actions, suits or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith proceedings at law or willful misconduct on the part of the Escrow Agent and arising out ofin equity, or in connection with the acceptance ofother expenses, fees, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement charges of any claim against the character or nature, which it may incur or with which it may be threatened by reason of its acting as Escrow Agent with respect to which the Escrow Agent demands indemnification ▇▇▇▇▇▇▇ Money under this Agreement; and in such connection SELLER and BUYER shall indemnify Escrow Agent against any and all expenses, including reasonable attorneys' fees and the cost of defending any action, suit or proceeding or resisting any claim in such capacity. If the parties (including Escrow Agent) shall be in disagreement about the interpretation of this Agreement, or about their respective rights and obligations, or the propriety of any action contemplated by Escrow Agent with respect to the ▇▇▇▇▇▇▇ Money, Escrow Agent may, but shall not be required to, file an action in interpleader to - resolve the disagreement. Escrow Agent shall promptly notify Purchaser be indemnified for all costs and reasonable attorneys' fees in its capacity as Escrow Agent in connection with any such interpleader action and shall be fully protected in suspending all or part of its activities under this Agreement until a final judgment in the Company interpleader action is received. Nothing in this subsection shall in any manner affect the obligations of the commencement of such claim. In no event shall Purchaser or Title Company in its capacity as the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent issuer of the commencement Title Commitment and/or the Title Policy, nor in its capacity as the closer of any such claim. Purchaser the transaction, nor shall the foregoing indemnities of BUYER and the Company shall SELLER be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them applicable to the Escrow Agent; provided that Title Company other than in its capacity as the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company and delivered to the Escrow Agent and to such successor escrow agent and, thereupon, the resignation or removal holder 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms▇▇▇▇▇▇▇ Money.
Appears in 1 contract
Sources: Agreement of Sale (Wells Real Estate Investment Trust Inc)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser Buyer and the CompanySelling Entity, the Escrow Agent shall not sell, transfer or otherwise dispose of, of in any manner, manner all or any portion of the Escrow FundsAmount, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be 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 and in accordance with the opinion of such counsel.
(e) Except as provided herein, the The Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, Amount or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A C to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by PurchaserBuyer. Selling Entity shall reimburse Buyer for one-half of such fees and expenses as are paid for by Buyer.
(g) Purchaser Buyer and the Company, jointly and severally, Selling Entity shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent fees, incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty twenty (3020) business daysBusiness Days’ prior written notice of resignation to Purchaser Buyer and the CompanySelling Entity. Purchaser Buyer and the Company Selling Entity may at any time jointly remove the Escrow Agent by giving ten (10) business days prior Business Days’ written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agentEscrow Agent, which shall be a bank or trust company having capital (or in the case of a subsidiary of a bank holding company, its bank holding company parent shall have) assets in excess of $500 million, and surplus of at least $10 billionwhich shall be reasonably acceptable to the Selling Entity, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser Buyer and the Company Selling Entity and delivered to the Escrow Agent and to such successor escrow agent Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor escrow agentEscrow Agent, without any further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder by of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the CompanySelling Entity, Buyer or the successor Escrow Agent, execute and deliver to such successor escrow agent Escrow Agent all of its the right, title and interest hereunder in and to the Escrow Account Amount of such predecessor Escrow Agent and all of its other rights hereunderhereunder of such predecessor Escrow Agent. If no successor escrow agent Escrow Agent shall have been appointed within twenty (20) business days Business Days of a notice of resignation by the Escrow Agent, the Escrow Agent may, but need not, apply to a court of competent jurisdiction to appoint a successor and the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account Amount until the earlier earliest of (i) its receipt of designation of a successor escrow agentEscrow Agent, (ii) a joint written instructions instruction by Purchaser Buyer and the Company and Selling Entity, or (iii) termination of this Agreement in accordance with its terms.
(i) In no event shall the Escrow Agent be liable for incidental, consequential or punitive damages.
Appears in 1 contract
Escrow Agent. (a) Except Farmor and Farmees hereby designate and appoint Trinity Petroleum Management, LLC, a Colorado limited liability company, whose address is ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as expressly contemplated by the escrow agent to hold the Assignments and deliver them according to the terms of this Agreement or by joint written instructions from Purchaser and (the Company, the "Escrow Agent"). The Escrow Agent shall not sellhold the Assignments in trust for the benefit of Farmor and/or Farmees, transfer or otherwise dispose ofas the case may be, in any manner, all or any portion and shall deliver the Assignments (i) to the respective Farmees upon receipt of written notice from Farmor that Full Performance has occurred within the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely time period specified by this Agreement, and or (ii) to Farmor upon receipt of written notice from Farmor that Full Performance did not occur within the time periods specified by this Agreement. The Escrow Agent shall not be liable except for deliver the performance of such duties and obligations as are specifically set forth in this Agreement.
Assignments to the pertinent parties within five (c5) In the performance business days of its duties hereunder, receipt of the operative written notice. The Escrow Agent shall be entitled to rely upon the contents of any documentsuch written notice, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate without inquiring into the truth or accuracy of any statement contained in any such document or instrument.
(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.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement thereof. Farmor and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the CompanyFarmees, jointly and severally, shall reimburse indemnify, defend and indemnify hold harmless the Escrow Agent forfrom and against any and all losses, damages, liabilities, cost and hold expenses that may be incurred by it harmless againstarising out of or in any way connected with its service hereunder, any lossexcept for such losses, liability or expensedamages, includingliabilities, without limitation, reasonable attorneys’ fees to costs and expenses as may result from the extent incurred without fraud, Escrow Agent's gross negligence, bad faith negligence or willful misconduct on misconduct. If, in the part Escrow Agent's reasonable opinion, there exists a bona fide dispute between Farmor and Farmees concerning the delivery of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this AgreementAssignments, the Escrow Agent shall promptly notify Purchaser may commence an interpleader action in any court of competent jurisdiction and deposit the Company of Assignments into the commencement registry of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereofcourt.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer or otherwise dispose of, in any manner, all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(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.
(e) Except as provided herein, the Escrow Agent shall have no duty as to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided provided, that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is has been appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Purchaser and the Company, the Escrow Agent shall not sell, transfer may resign from its duties under this Escrow Agreement by giving Buyer and Seller forty-five (45) days written notice of such resignation and delivering all the Deposit and accounts thereof as Buyer and Seller direct or otherwise dispose ofif no joint direction is provided then Escrow Agent may, in any mannerits sole and absolute discretion, all or any interplead that portion of the Escrow Funds, except pursuant to an order of a Deposit it then holds with any court of competent jurisdiction.
(b) The duties , and obligations of the name Seller and Buyer as parties in such interpleader action; provided however that Escrow Agent shall be determined solely remain obligated to perform its obligations under this Escrow Agreement until such time as a substitute Escrow Agent has been appointed and approved by Buyer and has assumed the duties of Escrow Agent under this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) . In the performance performing any of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(d) The Escrow Agent shall not be liable incur any liability to anyone for damages, losses or expenses, except for negligence, default or breach of trust, and it shall accordingly not incur any error such liability with respect to (i) any action taken or omitted in good faith upon advice of judgmentits legal counsel, or (ii) any action taken, suffered taken or omitted in reliance upon any instrument, including any written instruction or notice provided for in this Escrow Agreement, not only as to be takenprovisions but also as to truth and accuracy of any information contained therein, hereunder except in the case of its gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, the which Escrow Agent shall in good faith believe to be genuine, to have no duty as to the collection or protection of the Escrow Fundsbeen signed, or income thereonpresented by a proper person, nor as and to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection conform with the preparation provisions of this Agreement and the carrying out of its duties under this Escrow Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claim. The Escrow Agent shall have the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove the Escrow Agent by giving ten (10) business days prior written notice signed by each of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Purchase and Sale Agreement (RREEF Property Trust, Inc.)
Escrow Agent. (a) Except as expressly contemplated by Limitation of the Escrow Agent's Liability; Responsibilities of the Escrow Agent. The Escrow Agent's responsibility and liability under this Agreement shall be limited as follows:
(i) the Escrow Agent does not represent, warrant or by joint written instructions guaranty to the Securityholders or the holders of Existing Notes from Purchaser and time to time the performance of the Company; (ii) the Escrow Agent shall have no responsibility to the Company or the Beneficiaries or the Existing Beneficiaries from time to time as a consequence of performance or non-performance by the Escrow Agent hereunder, except for any gross negligence or willful misconduct of the Escrow Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and conduct; and (iv) the Escrow Agent is not obligated to supervise, inspect or inform the Company or any third party of any matter referred to above. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions of any agreement beyond the specific terms hereof. Specifically and without limiting the foregoing, the Escrow Agent shall not sellin no event have any liability in connection with its investment, transfer reinvestment or otherwise dispose ofliquidation, in good faith and in accordance with the terms hereof, of any mannerfunds or U.S. Government Securities held by it hereunder, all including without limitation any liability for any delay not resulting from gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any portion 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, the Trustee or the Existing Notes Trustee in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. The Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. At any time the Escrow FundsAgent may request in writing an instruction in writing from the Company, except pursuant and may at its own option include in such request the course of action it proposes to an order of a court of competent jurisdiction.
(b) The take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations of hereunder; provided, however, that the Escrow Agent shall be determined solely by state in such request that it believes in good faith that such proposed course of action is consistent with another identified provision of this Agreement, and the . The Escrow Agent shall not be liable except to the Company for acting without the performance Company's consent in accordance with such a proposal on or after the date specified therein if (i) the specified date is at least 9 -9- two business days after the Company receives the Escrow Agent's request for instructions and its proposed course of action, and (ii) prior to so acting, the Escrow Agent has not received the written instructions requested from the Company. The Escrow Agent may act pursuant to the written advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to clause (ii) of the first paragraph of this Section 4(a)) shall not be liable for any action taken or omitted in accordance with such duties and obligations advice. The Escrow Agent shall not be called upon to advise any party as are specifically set forth in this Agreement.
(c) to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In the performance event of its duties any ambiguity in the provisions of this Agreement with respect to any funds or property deposited hereunder, the Escrow Agent shall be entitled to rely upon refuse to comply with any documentand all claims, instrument demands or signature believed by it in good faith instructions with respect to be genuine such funds or property, and signed by any party hereto or an authorized officer or agent thereof and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument.
(d) The Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until either any error conflicting or adverse claims or demands shall have been finally determined by a court of judgmentcompetent jurisdiction or settled by agreement between the conflicting claimants as evidenced in a writing, satisfactory to the Escrow Agent, or any action taken, suffered or omitted to be taken, hereunder except in the case of its gross negligence, bad faith or willful misconduct.
(e) Except as provided herein, the Escrow Agent shall have no duty as received security or an indemnity satisfactory to the collection or protection of the Escrow Funds, or income thereon, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount specified in Schedule A sufficient to this Agreement and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid by Purchaser.
(g) Purchaser and the Company, jointly and severally, shall reimburse and indemnify save the Escrow Agent for, harmless from and hold it harmless against, against any and all loss, liability or expense, including, without limitation, reasonable attorneys’ fees to the extent incurred without fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent and arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. Promptly after the receipt by the Escrow Agent of notice of the commencement of any claim against the Escrow Agent with respect to expense which the Escrow Agent demands indemnification under this Agreement, the Escrow Agent shall promptly notify Purchaser and the Company may incur by reason of the commencement of such claim. In no event shall Purchaser or the Company be liable under this indemnity for any claim against the Escrow Agent unless Purchaser and the Company shall have been promptly notified by the Escrow Agent of the commencement of any such claim. Purchaser and the Company shall be entitled to participate at their own expense in the defense and, if Purchaser and the Company so elect at any time after receipt of such notice, Purchaser and the Company may assume the defense of any suit brought to enforce any such claimits acting. The Escrow Agent shall have may in addition elect in its sole option to commence an interpleader action or seek other judicial relief or orders as the right, but shall be under no obligation, to employ separate counsel in any such suit and participate in the defense thereof.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written notice deem necessary. No provision of resignation to Purchaser and the Company. Purchaser and the Company may at any time jointly remove this Agreement shall require the Escrow Agent by giving ten (10) business days prior written notice signed by each to expend or risk its own funds or otherwise incur any financial liability in the performance of them to the Escrow Agent; provided that the Escrow Agent’s resignation shall not be effective unless and until a successor escrow agent is appointed and the Escrow Agent delivers the Escrow Funds to such successor. If the Escrow Agent shall resign or be removed, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $10 billion, shall be appointed by Purchaser and Company by a written instrument executed by Purchaser and the Company 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 by such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Purchaser and the Company, execute and deliver to such successor escrow agent all of its right, title and interest hereunder in and to the Escrow Account and all of its other rights duties hereunder. If no successor escrow agent shall have been appointed within twenty (20) business days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Account until the earlier of its receipt of designation of a successor escrow agent, joint written instructions by Purchaser and the Company and termination of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Escrow Agreement (Optel Inc)