Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that: (a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest. (b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement. (c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays. (d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice. (f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent. (g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it. (h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. (i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction. (j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof. (k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question. (l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). (m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof. (n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Samples: Placement Agency Agreement (Sciclone Pharmaceuticals Inc), Placement Agency Agreement (Integramed America Inc)
Concerning the Escrow Agent. To induce a) All parties acknowledge and agree that the Escrow Agent to act is acting solely and exclusively as a depository hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for liability to any Person in acting upon or refraining from acting on any written notice, request, waiver, consent, certificate, receipt, authorization, or other paper or document which the contents Escrow Agent believes to be genuine and what it purports to be.
b) The Escrow Agent may confer with legal counsel in the event of any writing dispute or question as to the construction of any third party contemplated herein as a means to resolve disputes of the provisions hereof, or its duties hereunder, and may rely without any shall incur no liability upon and it shall be fully protected in acting in accordance with the contents thereofopinions of such counsel.
(kc) In the event of any disagreement among conflicting or between the other parties hereto and/or the subscribers of the Shares resulting in adverse inconsistent claims or demands being made in connection with the Escrowed Propertysubject matter of this Escrow Agreement, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent may, at its option refuse to comply with any claims or demands on it, or refuse to take any other action hereunder so long as such disagreement continues or such doubts exists, and in any such event, the Escrow Agent shall not be or become liable in any way or to any person for its failure or refusal to act, and the Escrow Agent shall be entitled to retain continue to refrain from acting until (i) the Escrowed Property until rights of all parties have been fully and finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been settled and all doubt resolved by agreement among all on the interested Persons, and the Escrow Agent shall have received been notified thereof in writing singed by all such Persons. In addition to the foregoing rights, in the event the Escrow Agent has any doubt as to the course of action it should take under this Escrow Agreement, the Escrow Agent is hereby authorized to petition any District Court of Maricopa County or the United States District Court of the District of Arizona for instructions or to interplead the funds or assets so held (iincluding Property and any investments) a final into such court. The parties agree to the jurisdiction of either of said courts over their persons as well as the Property, waive personal service of process, and non-appealable order agree that service of a process by certified or registered mail, return receipt requested, to the address set forth below each party's signature to the Escrow Agreement shall constitute adequate service. The Depositor and the Other Party hereby agree to indemnify and hold the Escrow Agent harmless from any liability or losses occasioned thereby and to pay any and all of its fees, cost, expenses, and counsel fees and expenses incurred in any such action and agree that, on such petition or interpleader action, the Escrow Agent its servants, agents, employees or officers will be relived of further liability.
d) THE INDEMNIFIED PARTY SHALL NOT BE LIABLE TO ANY PERSON FOR ANYTHING WHICH IT MAY DO OR REFRAIN FROM DOING IN CONNECTION WITH THIS ESCROW AGREEMENT INCLUDING THE INDEMNIFIED PARTY'S OWN NEGLIGENCE, BUT EXCLUDING THE INDEMNIFIED PARTY" OWN GROSS NEGLIGENCE OR WILLFUL MALFEASANCE. THE INDEMNIFIED PARTY'S LIABILITY FOR ANY GROSSLY NEGLIGENT PERFORMANCE OR THE NONPERFORMANCE SHALL NOT EXCEED ITS FEES IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL THE INDEMNIFIED PARTY BE LIABLE TO THE DEPOSITOR OR THE OTHER PARTY OR ANY PARTY FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR LOSS OF BUSINESS, ARISING UNDER OR IN CONNECTION WITH THIS ESCROW AGREEMENT.
e) THE DEPOSITOR AND THE OTHER PARTY HEREBY AGREE JOINTLY AND SEVERALLY TO PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTY AGAINST ANY AND ALL COSTS, LOSSES, DAMAGES, LIABILITIES, CLAIMS EXPENSES (INCLUDING COUNSEL FEES AND EXPENSES) AND CLAIMS INCURRED BY IT WITHOUT GROSS NEGLIGENCE OR WILLFUL MALFEASANCE ON THE INDEMNIFIED PARTY'S PART ARISING OUT OF OR IN ITS DUTIES HEREUNDER, INCLUDING THE COST AND EXPENSES OF DEFENDING ITSELF AGAINST ANY CLAIM OF LIABILITY RELATING TO THIS ESCROW AGREEMENT.
f) The Escrow Agent may resign for any reason, upon 30 days written notice to the Depositor and the Other Party to this Escrow Agreement. Upon expiration of such 30 day notice period, the Escrow Agent will deliver all Property in its possession under this Escrow Agreement to any successor escrow agent appointed jointly by Depositor and the Other Party, or if no successor escrow agent has been so appointed, to any court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Propertyin Maricopa County, in which event Arizona. Upon either such delivery, the Escrow Agent shall be released from any and all liability under this Escrow Agreement.
g) Contemporaneously with the execution of this Escrow Agreement the Other Party shall pay to the Escrow Agent an Acceptance Fee $1,500.00 and a base Annual Administration Fee of $1,500.00, which fee shall be deemed fully earned immediately, regardless of the actual length of time during which this Escrow Agreement is effective. In addition the Other Party agrees to pay to the Escrow Agent its customary fees and expenses, including pre approved counsel fees and expenses for the services rendered by it pursuant to the provisions of this Escrow Agreement. The Escrow Agent's current fee schedule is attached hereto as Exhibit B (but such fees may be adjusted from time to time, in which case the Other Party agrees to pay the adjusted fees).
h) It is strictly understood that the Escrow Agent has no duty to disburse any funds to any Person until such funds have been collected by the Escrowed Property Escrow Agent and those funds are available in accordance with such order or agreement. Any court order referred to in (normal banking procedures and/or policy.
i) above No assignment of the interest of any of the parties hereto shall be accompanied by a legal opinion by counsel for binding upon the presenting party Escrow Agent unless and until written evidence of such assignment in form satisfactory to the Escrow Agent to shall be filed with and accepted by the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further questionAgent.
(lj) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay Any corporation or association into which the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as if herein set forth). In additionwhole or in part, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State corporation or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant association resulting from any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery conversion, sale, merger, consolidation or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by lawtransfer to which it is a party, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (includingbecome the successor Escrow Agent hereunder and vested with all of the title to as was its predecessor, without limitationthe execution or filing of any instrument or any further act, deed or conveyance on the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties part of any of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents hereto, anything herein to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectuscontrary notwithstanding.
Appears in 2 contracts
Samples: Escrow Agreement (Summa Metals Corp /Nv/), Escrow Agreement (Summa Metals Corp /Nv/)
Concerning the Escrow Agent. To induce 4.1. Duties and Responsibilities of the Escrow Agent Agent. The Escrow Agent’s duties and responsibilities shall be subject to act hereunder, it is further agreed by the Company following terms and Placement Agent thatconditions:
(a) The Subscribers and the Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscribers or Company is entitled to receipt of the Company Documents and Subscriber Documents, respectively, pursuant to any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the Escrowed Property property held by it Escrow Agent hereunder any greater degree of care than it Escrow Agent gives its own similar property property; and shall not (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be required to invest full and complete authorization and protection in respect of any funds held action taken, suffered or omitted by Escrow Agent hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestgood faith and in accordance with the opinion of such counsel.
(b) The Subscribers and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscribers and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent’s partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent’s part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscribers and Company under this Agreement and to no other person.
(c) The Subscribers and the Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days’ prior written notice of resignation to the Subscribers and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscribers and the Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscribers and the Company. If no successor Escrow Agent is named by the Subscribers and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) Other than in connection with the Subscriber Legal Fees, the Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Escrow Agreement expressly sets forth all exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No thereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation shall be permitted to act as counsel for the Subscribers in any dispute as to the validitydisposition of the Company Documents and Subscriber Documents, valuein any other dispute between the Subscribers and the Company, genuineness whether or not the collectibility of any security or other document or instrument held by or delivered Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to itact as the Escrow Agent hereunder.
(h) The Escrow Agent provisions of this Section 4.1 shall not be called upon to advise any party as to survive the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on or the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Samples: Subscription Agreement (Wizard World, Inc.), Subscription Agreement (Wizard World, Inc.)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in pursuant to Section 5 of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence negligence, willful misconduct or willful misconductbreach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence or negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including including, without limitation limitation, any liability for any delays (not resulting from its gross negligence negligence, willful misconduct or willful misconductbreach of this Escrow Agreement) in the investment or reinvestment of the Escrowed PropertyEscrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety proprieties, validity or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give notice or advice, accept receipt of or advice execute any document, or make any statement or execute any document in connection with the provisions hereof hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder onlyonly and has no interest in the Escrow Funds deposited hereunder. Any payments of income from the this Escrow Account Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto Company will provide the Escrow Agent with appropriate W-9 forms for tax I.D., identification number certification, certification or non-resident nonresident alien certifications. This paragraph (fSection 6(f) and paragraph (cSection 6(c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, delivering the Escrow Agent shall deliver the Escrowed Property Funds to any successor escrow agent Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Escrow Funds until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyEscrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Escrow Funds until the Escrow Agent shall have received (i) a final and non-appealable nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Escrow Funds or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyEscrow Funds, in which event the Escrow Agent shall disburse the Escrowed Property Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion by of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablenonappealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(l) As consideration Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its agreement failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent as herein described, the under Section 6(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee set forth on Exhibit F hereto (made a part of this $1,000 as payment in full for the services to be rendered by the Escrow Agreement as if herein set forth)Agent hereunder. In addition, the Company agrees to reimburse the Escrow Agent for pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectusprospectuses, notices, reports and promotional materialmaterials) which mentions the Escrow Agent's name or the rights, powers, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectussuch mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Escrow Agreement (Zen Raku Enterprises Inc), Escrow Agreement (Promap Corp)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in pursuant to Section 1 of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence negligence, willful misconduct or willful misconductbreach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence or negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including including, without limitation limitation, any liability for any delays (not resulting from its gross negligence negligence, willful misconduct or willful misconductbreach of this Escrow Agreement) in the investment or reinvestment of the Escrowed PropertyEscrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety proprieties, validity or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give notice or advice, accept receipt of or advice execute any document, or make any statement or execute any document in connection with the provisions hereof hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder onlyonly and has no interest in the Escrow Funds deposited hereunder. Any payments of income from the this Escrow Account Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto Company will provide the Escrow Agent with appropriate W-9 forms for tax I.D., identification number certification, certification or non-resident nonresident alien certifications. This paragraph (fSection 4(f) and paragraph (cSection 4(c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, delivering the Escrow Agent shall deliver the Escrowed Property Funds to any successor escrow agent Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Escrow Funds until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyEscrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Escrow Funds until the Escrow Agent shall have received (i) a final and non-appealable nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Escrow Funds or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyEscrow Funds, in which event the Escrow Agent shall disburse the Escrowed Property Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion by of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablenonappealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(l) As consideration Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its agreement failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent as herein described, the under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee set forth on Exhibit F hereto (made a part of this $1,500 as payment in full for the services to be rendered by the Escrow Agreement as if herein set forth)Agent hereunder. In addition, the Company agrees to reimburse the Escrow Agent for pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectusprospectuses, notices, reports and promotional materialmaterials) which mentions the Escrow Agent's name or the rights, powers, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectussuch mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Escrow Agreement (maniaTV Inc.), Escrow Agreement (Canfield Medical Supply, Inc.)
Concerning the Escrow Agent. To induce 4.1 Each Interested Party acknowledges and agrees that the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(ai) The Escrow Agent shall not be under responsible for any duty of the agreements referred to give or described herein (including without limitation the Escrowed Property held by it hereunder any greater degree Stock Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of care than it gives such duties as are expressly and specifically set forth in this Agreement on its own similar property part to be performed, each of which is ministerial (and shall not be required construed to invest any funds held hereunder except as directed be fiduciary) in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any nature, and all matters pertinent hereto. No no implied duties or obligations of any kind shall be read into this Escrow Agreement against or on the Escrow Agent. The Escrow Agent shall not be bound by the provisions part of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely protected in acting or refraining from acting upon any order, judgment, certification, demand, written notice, instrument instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other writing delivered document furnished to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature and believed by it in good faith to be genuine and to have been signed or presented by the proper person, and shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may assumeconsult counsel satisfactory to it, if in good faithincluding in-house counsel, that any person purporting to give notice or receipt and the opinion or advice or make of such counsel in any statement or execute any document instance shall be full and complete authorization and protection in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice respect of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such advicecounsel.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) 4.2 The Escrow Agent shall not be called upon liable to advise any party as to the wisdom of selling or retaining or taking or refraining from anyone for any action with respect taken or omitted to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations taken by it hereunder by except in the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto case of the Escrow Agent's written notice ’s gross negligence or willful misconduct in breach of resignationthe terms of this Agreement. If at that time In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent has not received a designation been informed of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep likelihood of such loss or damage and regardless of the Escrowed Property safe until receipt form of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdictionaction.
(j) 4.3 The Escrow Agent shall have no more or less responsibility for the contents or liability on account of any writing action or omission of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among book-entry depository, securities intermediary or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct in good faith breach of this Agreement.
4.4 The Escrow Agent is hereby authorized, in doubt making or disposing of any investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as to what action it should take hereunder, a subagent of the Escrow Agent or for any third person or dealing as principal for its own account.
4.5 Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received be required or obligated to distribute any Escrowed Assets (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than five (5) Business Days after (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of it has received the Escrowed Property applicable documents required under this Agreement in good form, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery passage of the Escrowed Propertyapplicable time period (or both, in which event as applicable under the Escrow Agent shall disburse terms of this Agreement), as the Escrowed Property in accordance with such order case may be.
4.6 Unless and except to the extent otherwise expressly set forth herein, all deposits and payments hereunder, or agreement. Any court order referred pursuant to in the terms hereof (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory including without limitation all payments to the Escrow Agent pursuant to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forthSection 5). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofin U.S. dollars.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Samples: Stock Purchase Agreement (FusionStorm Global, Inc.), Stock Purchase Agreement (FusionStorm Global, Inc.)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by each of the Company Seller and Placement Agent FGC that:
(ai) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(bii) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(ciii) The Escrow Agent shall not be liable, except for its own gross negligence negligence, willful misconduct or willful misconductbreach of any representations, warranties or covenants contained in this Agreement, and, except with respect to claims based upon such gross negligence or negligence, willful misconduct or breach that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of of, and in connection with with, this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including including, without limitation limitation, any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed PropertyFunds, or any loss of interest incident to any such delays.
(div) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument instrument, or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(ev) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(fvi) The Escrow Agent does not have any interest in the Escrowed Property Funds deposited hereunder hereunder, but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (fvi) and paragraph (ciii) of this Section 7 Article V shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(gvii) The Escrow Agent makes no representation as to the validity, value, genuineness genuineness, or the collectibility of any security or other document documents or instrument held by by, or delivered to to, it.
(hviii) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(iix) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company FGC and the Placement Agent Seller or at any time may resign by giving written notice to such effect to the Company FGC and the Placement AgentSeller. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (iA) the appointment of a successor (including a court of competent jurisdiction) or (iiB) the day that is 30 days after the date of delivery: (A1) to the Escrow Agent of the other parties' notice of termination or (B2) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any an enforceable order of a court of competent jurisdiction.
(jx) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kxi) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (iA) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (iiB) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (iA) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(lxii) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to FGC shall pay the Escrow Agent fees determined in accordance with the fee terms set forth on Exhibit F A hereto (and made a part of this Escrow Agreement as if herein set forth). In addition, FGC and the Company agrees Seller agree to reimburse the Escrow Agent for all reasonable expenses, disbursements disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses expenses, and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit and to share equally the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service costs thereof.
(nxiii) No printed publicly distributed material or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports notices and promotional materialreports) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Samples: Indemnity Escrow Agreement (Family Golf Centers Inc), Escrow Agreement (Family Golf Centers Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The fee of the Escrow Agent for its services provided hereunder shall be its customary fees for such services, payable on delivery of the escrow. The payment of all fees, disbursements, expenses and advances charged by the Escrow Agent shall not be under any duty to give borne by the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder Purchaser except as directed set forth in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestSection 2(d) above.
(b) This The Escrow Agreement expressly sets forth all Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to both the duties Stockholder and the Purchaser specifying a date not less than ten business days following the date of such notice when such resignation shall take effect. Upon such notice, a successor escrow agent, which shall be a national bank, shall be selected by the Purchaser, subject to the reasonable approval of the Stockholder, such successor escrow agent to become the Escrow Agent with respect hereunder upon the resignation date specified in such notice. If the Purchaser and the Stockholder are unable to any and all matters pertinent hereto. No implied duties or obligations agree upon a successor escrow agent within ten business days after the date of such notice, the Escrow Agent shall be read into this Escrow Agreement against the Escrow Agententitled to appoint its successor, which shall be a national bank. The Escrow Agent shall not continue to serve until its successor accepts the escrow and receives the Share Documents. The Purchaser, subject to the reasonable approval of the Stockholder, may at any time substitute a new Escrow Agent, which shall be bound a national bank, by giving notice thereof to the provisions of any agreement among the other parties hereto except this Escrow AgreementAgent then acting.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect undertakes to claims based upon perform only such gross negligence or willful misconduct that duties as are successfully asserted against the Escrow Agentspecifically set forth herein and may conclusively rely upon, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon protected in acting or refraining from acting on, any order, judgment, certification, demand, written notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice have been signed or receipt presented by the proper party or advice or make any statement or execute any document in connection with the provisions hereof has been parties duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
. Notwithstanding anything to the contrary in this Escrow Agreement, where Escrow Agent is required to take action upon delivery by the Stockholder or the Purchaser (kor both of them) In the event of any disagreement among a notice, certificate or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that instructions to the Escrow Agent in good faith is in doubt as to what action it should take hereunderAgent, the Escrow Agent shall not be entitled obligated to retain take any action until the Escrowed Property until appropriate party (or parties) has acted by delivering the certificate, notice or instructions to the Escrow Agent (none of which shall be binding upon the Escrow Agent unless in writing) as to the action to be taken hereunder indicating in writing that a copy of such certificate, notice or instructions has been delivered to the other party. The Stockholder and the Purchaser acknowledge that the Escrow Agent is bound only by the terms of this Escrow Agreement and that the Escrow Agent shall have not be required to use its discretion with respect to any matter that is the subject of this Escrow Agreement or with respect to instructions received under this Escrow Agreement.
(id) The Escrow Agent shall not be liable for any action or omission in good faith believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action or omission in good faith and in accordance with advice of outside counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistakes of fact or error of judgment or for any acts or omissions of any kind unless caused by its own willful misconduct or gross negligence.
(e) Except as set forth in the next sentence, the Purchaser and its respective successors and assigns will indemnify and hold harmless Escrow Agent against any and all losses, claims, damages, liabilities and expenses, including reasonable costs of investigation, counsel fees and disbursements that may be imposed on Escrow Agent or incurred by Escrow Agent in connection with its acceptance of appointment or the performance of its duties under this Escrow Agreement, including any litigation arising from this Escrow Agreement or involving its subject matter, except as a final result of Escrow Agent's own gross negligence or willful misconduct. The Stockholder and non-appealable order its respective successors and assigns will indemnify and hold harmless Escrow Agent against any and all losses, claims, damages, liabilities and expenses, including reasonable costs of investigation, counsel fees and disbursements that may be imposed on Escrow Agent or incurred by Escrow Agent in connection with or arising out of Section 2(d) of this Escrow Agreement, including any litigation arising therefrom or involving its subject matter, except as a result of Escrow Agent's own gross negligence or willful misconduct. Notwithstanding the preceding two sentences, if a court of competent jurisdiction directing delivery of the Escrowed Property finally determines that any party hereto acted unreasonably in failing to give a notice or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Propertyacknowledgment hereunder, in which event such party shall indemnify the Escrow Agent shall disburse pursuant to this clause (e) and the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above other party hereto shall be accompanied by a legal opinion by counsel for relieved of any obligation to indemnify the presenting party satisfactory Escrow Agent pursuant to this clause (e) to the extent that such failure to act reasonably causes the Escrow Agent to incur any losses, claims, damages, liabilities and expenses, including reasonable costs, fees and disbursements referred to in the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
first sentence of this clause (l) As consideration e), for its agreement to act as Escrow Agent as herein described, the Company agrees to pay which the Escrow Agent is entitled to indemnification pursuant to this clause (e). Such indemnity shall survive the fee set forth on Exhibit F hereto (made a part termination or discharge of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance resignation of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Samples: Stockholder Escrow Agreement (BRW Steel Corp), Stockholder Escrow Agreement (BRW Steel Corp)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be have any liability to any of the parties to this Agreement or to any third party arising out of its services as Escrow Agent under any duty to give this Agreement, except for damages directly resulting from the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn Agent's gross negligence or accrue interestwillful misconduct.
(b) This Escrow Agreement expressly sets forth all The Company and the duties of Investors jointly and severally shall indemnify the Escrow Agent with respect to and hold it harmless against any and all matters pertinent hereto. No implied duties loss, liability, damage or obligations shall be read into this Escrow Agreement against expense (including reasonable attorneys' fees) that the Escrow Agent. The Escrow Agent shall not be bound by the provisions may incur as a result of any agreement among the other parties hereto except acting as escrow agent under this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for any loss, liability, damage or expense arising from its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against . As between the Escrow Agent, Company and the other parties hereto Investors, such obligations shall jointly be borne equally by the Company and severally indemnify and hold harmless the Investors. For this purpose, the term "attorneys' fees" includes fees payable to any counsel retained by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faithservices under this Agreement and, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident respect to any such delaysmatter arising under this Agreement as to which the Escrow Agent performs legal services, if and to the extent that the Escrow Agent itself is a law firm, its standard hourly rates and charges then in effect.
(dc) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder under this Agreement without being required to determine the authenticity of, or the correctness of any fact stated therein in, that document and irrespective of any facts the Escrow Agent may know or the propriety or validity of the service thereofbe deemed to know in any other capacity. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give any notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof this Agreement has been duly authorized to do so.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to shall have no duties or responsibilities except those expressly set forth in this Agreement. The Escrow Agreement and Agent shall not have any obligations arising out of or be liable bound by the provisions of any other agreement, written or oral, including, but not limited to, the Securities Purchase Agreement.
(e) All of the Escrow Agent's rights of indemnification provided for any action taken in this Agreement shall survive the resignation of the Escrow Agent, its replacement by a successor Escrow Agent, its delivery or omitted in good faith and deposit of the Escrow Deposit in accordance with such advicethis Agreement, the termination of this Agreement, and any other event that occurs after this date.
(f) The Escrow Agent does not shall have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force no responsibility with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation sufficiency of the Escrow Agentarrangements contemplated by this Agreement to accomplish the intentions of the parties.
(g) The Investors and the Placement Agent acknowledge that they know that the Escrow Agent makes no representation as has represented the Company in connection with the Securities Purchase Agreement and this Agreement and that it may continue to represent the validityCompany in that connection and in connection with the transactions contemplated by those agreements, valueincluding, genuineness or the collectibility but not limited to, in connection with any disputes that may arise under either of any security or other document or instrument held by or delivered to it.
(h) those agreements. The Escrow Agent shall not be called upon to advise precluded from or restricted from representing the Company or any party of its affiliates or otherwise acting as attorneys for the Company or any of its affiliates in any matter, including, but not limited to, any court proceeding or other matter related to the wisdom of selling Securities Purchase Agreement, this Agreement or retaining the transactions contemplated by the Securities Purchase Agreement, or taking this Agreement or refraining from any action the Escrow Deposit, whether or not there is a dispute between the Investors and the Company with respect to any securities or other property deposited hereunder.
(i) such matter. The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company Investors and the Placement Agent or at any time may resign by giving written notice irrevocably consent to such effect to the Company and the Placement Agent. Upon any such termination representation and waive any conflict or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court appearance of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims conflict with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofrepresentation.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Samples: Escrow Agreement (Fashion Tech International Inc), Escrow Agreement (Sunset Suits Holdings, Inc.)
Concerning the Escrow Agent. To induce 3.1 The Escrow Agent agrees to perform all of the duties hereinbefore set forth which are applicable to it unless prohibited by a court of competent jurisdiction.
3.2 The Pledgor will pay from time to time the reasonable fees and expenses of the Escrow Agent to act hereunder, in connection with the performance of its duties hereunder and in connection with any proceedings in which it is further agreed by involved as a result of agreeing to be a party to this Agreement.
3.3 The Pledgee and the Company Pledgor, jointly and Placement severally, will indemnify and save harmless the Escrow Agent that:
(a) from and against all other claims, demands, damage, loss and expense arising out of the good faith performance of its duties hereunder. This provision shall survive any resignation or removal of the Escrow Agent hereunder and any termination of this Agreement. The Escrow Agent shall not be under any duty obligation to give prosecute or to defend any action or suit which, in the Escrowed Property held by opinion of its counsel, may involve it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except in expense or liability, unless the parties hereto shall, so often as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of required, furnish the Escrow Agent with respect satisfactory indemnity and funding against such expense or liability.
3.4 Except as otherwise expressly provided herein, the Escrow Agent shall deal with the Escrow Documents from time to any and all matters pertinent hereto. No implied duties time only in accordance with the written instructions of the Pledgor.
3.5 The Escrow Agent will have no responsibility or obligations shall be read into this Escrow Agreement against in respect of the Escrow Agent. The Documents except the duty to exercise such care in the safekeeping thereof that a reasonably prudent person would exercise in comparable circumstances.
3.6 Except as expressly set out in this Agreement, the Escrow Agent shall not be bound by any notice of a claim or demand with respect thereto, or any waiver, modification, amendment, termination or rescission of thereof unless received by it in writing and signed by both the provisions of any agreement among Pledgor and the other parties hereto except Pledgee and unless it has given its written consent thereto if its duties or obligations under this Escrow AgreementAgreement are affected.
(c) 3.7 The Escrow Agent shall may rely and will be protected in acting on any written notice, request, waiver, consent, receipt, election, declaration or any paper or document furnished to it and executed, whether or not be liableunder the seal, except for by any party hereto not only as to its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, due execution and the other parties hereto shall jointly validity and severally indemnify effectiveness of its provisions, but also as to the truth and hold harmless acceptability of any information therein contained, which it in good faith believes to be genuine and the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event will not be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity of signatures or the correctness power and authority of any fact stated therein signatory to execute documents or to verify the propriety or validity accuracy of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do socontained therein.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Samples: Escrow Agreement (Continental Minerals Corp), Escrow Agreement (Continental Minerals Corp)
Concerning the Escrow Agent. To induce 4.1. Duties and Responsibilities of the Escrow Agent Agent. The Escrow Agent's duties and responsibilities shall be subject to act hereunder, it is further agreed by the Company following terms and Placement Agent thatconditions:
(a) The Purchaser and the Company acknowledge and agree that the Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and (i) shall not be required to invest inquire into whether the Purchaser, the Company or any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder other party is entitled to receipt of any Document or all or any portion of the Escrowed Payment; (ii) shall not earn be called upon to construe or accrue interest.
review any Document or any other document, instrument or agreement entered into in connection therewith; (biii) This Escrow Agreement expressly sets forth all shall be obligated only for the performance of such duties of as are specifically assumed by the Escrow Agent with respect pursuant to any this Agreement; (iv) may rely on and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faithfaith to be genuine and to have been signed or presented by the proper person or party, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent ; (v) may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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; (vi) shall not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent's choosing), the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Purchaser and the Company hereby, jointly and severally, indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives from and against any and all actions taken or omitted to be taken by Escrow Agent or any of them hereunder and any and all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the Escrow Agent arising in any manner whatsoever out of the transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the fees of outside counsel and other costs and expenses of defending itself against any claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the transactions contemplated by this Agreement and/or any transaction related in any way hereto, except for such claims, losses, liabilities, costs, damages and expenses incurred by reason of the Escrow Agent's gross negligence or willful misconduct. The Escrow Agent shall owe a duty only to the Purchaser and the Company under this Agreement and to no other person.
(c) The Purchaser and the Company shall jointly and severally reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including counsel fees (which counsel may be Loeb & Loeb LLP or such other counsel of the Escrow Agent's choosing) incurred in connection with the performance of its duties and responsibilities hereunder, which shall not (subject to Section 4.1(b)) exceed $2,000.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) business days prior written notice of resignation to the Purchaser and the Company. Prior to the effective date of resignation as specified in such notice, the Purchaser and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Documents and the Escrowed Payment to a substitute Escrow Agent selected by the Purchaser and the Company. If no successor Escrow Agent is named by the Purchaser and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and deposit the Documents and the Escrowed Payment with the clerk of any such court and/or otherwise commence an interpleader or similar action for a determination of where to deposit the same.
(e) The Escrow Agent may act pursuant to does not have and will not have any interest in the advice of counsel with respect to any matter relating to this Documents and the Escrowed Payment, but is serving only as escrow agent, having only possession thereof.
(f) The Escrow Agreement and Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be Loeb & Loeb, LLP or such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation other counsel of the Escrow Agent's choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except to the extent any such liability arose from its own willful misconduct or gross negligence.
(g) The This Agreement sets forth exclusively the duties of the Escrow Agent makes with respect to any and all matters pertinent thereto and no representation as to the validity, value, genuineness implied duties or the collectibility of any security or other document or instrument held by or delivered to itobligations shall be read into this Agreement.
(h) The Escrow Agent shall not be called upon permitted to advise act as counsel for the Purchaser or the Company, as the case may be, in any party dispute as to the wisdom disposition of selling the Documents and the Escrowed Payment, in any other dispute between the Purchaser and the Company, whether or retaining or taking or refraining from any action with respect not the Escrow Agent is then holding the Documents and/or the Escrowed Payment and continues to any securities or other property deposited act as the Escrow Agent hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by provisions of this Section 4.1 shall survive the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on or the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Samples: Funds Escrow Agreement (National Investment Managers Inc.), Funds Escrow Agreement (Windswept Environmental Group Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in pursuant to Section 5 of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence negligence, willful misconduct or willful misconductbreach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence or negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including including, without limitation limitation, any liability for any delays (not resulting from its gross negligence negligence, willful misconduct or willful misconductbreach of this Escrow Agreement) in the investment or reinvestment of the Escrowed PropertyEscrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety proprieties, validity or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give notice or advice, accept receipt of or advice execute any document, or make any statement or execute any document in connection with the provisions hereof hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder onlyonly and has no interest in the Escrow Funds deposited hereunder. Any payments of income from the this Escrow Account Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto Company will provide the Escrow Agent with appropriate W-9 forms for tax I.D., identification number certification, certification or non-resident nonresident alien certifications. This paragraph (fSection 6(f) and paragraph (cSection 6(c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, delivering the Escrow Agent shall deliver the Escrowed Property Funds to any successor escrow agent Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Escrow Funds until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyEscrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Escrow Funds until the Escrow Agent shall have received (i) a final and non-appealable nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Escrow Funds or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyEscrow Funds, in which event the Escrow Agent shall disburse the Escrowed Property Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion by of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablenonappealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(l) As consideration Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its agreement failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent as herein described, the under Section 6(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee set forth on Exhibit F hereto (made a part of this $1,500 as payment in full for the services to be rendered by the Escrow Agreement as if herein set forth)Agent hereunder. In addition, the Company agrees to reimburse the Escrow Agent for pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectusprospectuses, notices, reports and promotional materialmaterials) which mentions the Escrow Agent's name or the rights, powers, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectussuch mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Escrow Agreement (Canfield Medical Supply, Inc.), Escrow Agreement (Canfield Medical Supply, Inc.)
Concerning the Escrow Agent. To induce 4.1. Duties and Responsibilities of the Escrow Agent Agent. The Escrow Agent's duties and responsibilities shall be subject to act hereunder, it is further agreed by the Company following terms and Placement Agent thatconditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the Escrowed Property property held by it Escrow Agent hereunder any greater degree of care than it Escrow Agent gives its own similar property property; and shall not (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be required to invest full and complete authorization and protection in respect of any funds held action taken, suffered or omitted by Escrow Agent hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestgood faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Escrow Agreement expressly sets forth all exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No thereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation shall be permitted to act as counsel for the Subscriber in any dispute as to the validitydisposition of the Company Documents and Subscriber Documents, valuein any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, genuineness whether or not the collectibility of any security or other document or instrument held by or delivered Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to itact as the Escrow Agent hereunder.
(h) The Escrow Agent provisions of this Section 4.1 shall not be called upon to advise any party as to survive the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on or the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Samples: Subscription Agreement (Renegade Venture Nev Corp), Subscription Agreement (Renegade Venture Nev Corp)
Concerning the Escrow Agent. To induce Notwithstanding any provision contained herein to the contrary, the Escrow Agent to act hereunderincluding its officers, it is further agreed by the Company directors, employees and Placement Agent thatagents, shall:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted under this Agreement so long as it shall have acted in good faith and without gross negligence;
(b) have no responsibility to inquire into or determine the genuineness, authenticity, or sufficiency of any securities, checks, or other documents or instruments submitted to it in connection with its duties hereunder;
(c) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto, and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind;
(d) be entitled to refrain from taking any action contemplated by this Agreement in the event that it becomes aware of any disagreement between the parties hereto as to any facts or as to the happening of any contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investments or reinvestment made in accordance with such advice.any provision which may be contained herein;
(f) The be entitled to compensation for its services hereunder as per Exhibit A attached hereto, which is made a part hereof, and for reimbursement of its out-of-pocket expenses including, but not by way of limitation, the fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties hereunder, all to be paid by Seller and Buyer Parent, and the Escrow Agent does not have shall have, and is hereby granted, a prior lien upon any interest property, cash, or assets of the Escrow Account, with respect to its unpaid fees, non-reimbursed expenses and unsatisfied indemnification rights, superior to the interests of any other persons or entities;
(g) be entitled and is hereby granted the right to set off and deduct any unpaid fees, non-reimbursed expenses and unsatisfied indemnification rights from amounts on deposit in the Escrowed Property Escrow Account;
(h) be under no obligation to invest the deposited hereunder but funds or the income generated thereby until it has received a Form W-9, as applicable, from Seller and Buyer Parent, regardless of whether such party is serving exempt from reporting or withholding requirements under the Internal Revenue Code of 1986, as escrow holder only. Any payments amended;
(i) be, and hereby is, jointly and severally indemnified and saved harmless by Seller and Buyer Parent from all losses, liabilities, costs and expenses, including attorney fees and expenses, which may be incurred by it as a result of income from its acceptance of the Escrow Account or arising from the performance of its duties hereunder, unless such losses, liabilities, costs and expenses shall be subject have been finally adjudicated to withholding regulations then in force with respect to United States taxes. The parties hereto will provide have been primarily caused by the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, bad faith or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation gross negligence of the Escrow Agent., and such indemnification shall survive its resignation or removal, or the termination of this Agreement;
(gj) The Escrow Agent makes no representation as to in the validity, value, genuineness or event that (i) any dispute shall arise between the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action parties with respect to the disposition or disbursement of any securities of the assets held hereunder or other property deposited hereunder.
(iii) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged uncertain as to how to proceed in a situation not explicitly addressed by the terms of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation Agreement whether because of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction conflicting demands by the other parties hereto or any enforceable order otherwise, be permitted to interplead all of the assets held hereunder into a court of competent jurisdiction.
(j) , and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets. The parties hereto other than the Escrow Agent shall have no responsibility for further agree to pursue any redress or recourse in connection with such a dispute, without making the contents of any writing of any third Escrow Agent a party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.same;
(k) In the event of have only those duties as are specifically provided herein, which shall be deemed purely ministerial in nature, and shall under no circumstance be deemed a fiduciary for any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as parties to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablethis Agreement. The Escrow Agent shall act on such court order neither be responsible for, nor chargeable with, knowledge of the terms and legal opinion conditions of any other agreement, instrument or document between the other parties hereto, in connection herewith, including without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, limitation the Company agrees to pay the Escrow Agent the fee set Purchase Agreement. This Agreement sets forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit matters pertinent to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreementescrow contemplated hereunder, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties no additional obligations of the Escrow Agent shall be issued inferred from the terms of this Agreement or any other Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (i) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (ii) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
(l) have the right, but not the obligation, to consult with counsel of choice and shall not be liable for action taken or omitted to be taken by Escrow Agent either in accordance with the other parties hereto advice of such counsel or on such parties' behalf unless in accordance with any opinion of counsel to Seller addressed and delivered to the Escrow Agent; and
(m) have the right to perform any of its duties hereunder through its agents, attorneys, custodians or nominees. Any banking association or corporation into which the Escrow Agent may be merged, converted or with which the Escrow Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall first have given its specific written consent thereto. The be a party, or any banking association or corporation to which all or substantially all of the corporate trust business of the Escrow Agent hereby consents shall be transferred, shall succeed to all the Escrow Agent’s rights, obligations and immunities hereunder without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectuscontrary notwithstanding.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Kemet Corp)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interesthereunder.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement by or among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence negligence, willful misconduct or willful misconductbreach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence or negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, Company and the other parties hereto NCPS shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety proprieties, validity or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give notice or advice, accept receipt of or advice execute any document, or make any statement or execute any document in connection with the provisions hereof hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder onlyonly and has no interest in the Escrow Funds deposited hereunder. Any payments of income from the this Escrow Account Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto Company will provide the Escrow Agent with appropriate W-9 forms for tax I.D., identification number certification, certification or non-resident nonresident alien certifications. This paragraph (fSection 5(f) and paragraph (cSection 5(c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by delivering the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property Funds to any successor escrow agent Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of of
(i) the appointment of a successor (including a court of competent jurisdiction) or or
(ii) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Funds until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyFunds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Funds until the Escrow Agent shall have received received
(i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or Funds or
(ii) a written agreement executed by the other parties party[ies] hereto and consented to by the subscribers directing delivery of the Escrowed PropertyFunds, in which event the Escrow Agent shall disburse the Escrowed Property Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion by of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(l) As consideration Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its agreement failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with Clerk of the Court of Cxxxxxxx County, State of Kentucky, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent as herein described, the under Section 5(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the fee services of the Escrow Agent described herein, as set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth)in numbered paragraph 6 below. In addition, the Company agrees to reimburse the Escrow Agent for pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the ProspectusOfferings, notices, reports and promotional materialmaterials) which mentions the Escrow Agent's name or the rights, powers, powers or duties of the Escrow Agent shall be issued by the any other parties party hereto or on such parties' party's behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectussuch mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Escrow Agreement (REITless Impact Opportunity Zone Strategies LLC), Escrow Agreement (REITless Impact Opportunity Zone Strategies LLC)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give hereby accepts the Escrowed Property held agency established by it hereunder any greater degree of care than it gives its own similar property this Agreement and shall not perform the same upon the terms and conditions herein set forth, by all of which Buyer and the Company shall be required to invest any funds held hereunder except as directed in this Escrow Agreementbound. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the The duties of the Escrow Agent with respect to hereunder shall be purely ministerial. The Escrow Agent shall not have any duties or responsibilities except those expressly set forth herein, and all matters pertinent hereto. No no implied duties covenants or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent , whose duties and obligations shall not be bound determined solely by the express provisions of any agreement among the other parties hereto except this Escrow Agreementhereof.
(cb) The Escrow Agent shall not (i) be liableliable for any action taken or suffered or omitted to be taken by it in good faith in the belief that any documents or any signatures are genuine or properly authorized, (ii) be responsible for any failure on the part of the Company or Buyer or any predecessor Escrow Agent to comply with any of its representations, warranties, covenants or agreements contained in this Agreement, or (iii) be liable for any act or omission in connection with this Agreement, except in each case for its own gross negligence or willful misconduct. The Escrow Agent is hereby irrevocably authorized to, and shall, (A) act in accordance with this Agreement, and (B) make the releases and deliveries as provided in Section 2. Subject to the foregoing, the Escrow Agent hereby is authorized to accept instructions with respect to the performance of its duties hereunder from Buyer and the Company, and the Escrow Agent shall not be liable for any action taken or suffered or omitted to be taken by it in good faith in accordance with the instructions of Buyer and the Company, except for its own gross negligence or willful misconduct. However, andif Escrow Agent incurs reasonable legal fees and other costs in connection with its successful defense of a claim of gross negligence or willful misconduct, the Escrow Agent shall be indemnified for such fees.
(c) The Escrow Agent may execute and exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its officers, agents or employees, and the Escrow Agent shall not be answerable or accountable for any action taken, default, neglect or misconduct of any such officer, agent or employee, except with respect to claims based upon such for the gross negligence or willful misconduct that are successfully asserted against of the Escrow AgentAgent or any of them. The Escrow Agent shall not be under any obligation or duty to institute, and appear in, or defend any action, suit or proceeding in respect hereof, unless first indemnified to its reasonable satisfaction, but this provision shall not affect the power of the Escrow Agent to take such action as the Escrow Agent may consider proper, whether with or without such indemnity. Notwithstanding anything in this Agreement that may be to the contrary, the Escrow Agent shall have no liability hereunder to any of the other parties hereto for complying in good faith with any judgment or order of a court of competent jurisdiction. The Escrow Agent shall notify Buyer and the Company of any claim made or action, suit or proceeding instituted against it arising out of or in connection with this Agreement.
(d) Buyer and the Company from time to time shall perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further acts, instruments and assurances as may be reasonably required by the Escrow Agent in order to enable it to carry out or perform its duties under this Agreement.
(e) The Company and Buyer jointly and severally indemnify and hold harmless agree to reimburse the Escrow Agent (for its reasonable expenses, including taxes and governmental charges of any successor kind and nature, incurred by the Escrow Agent) from Agent hereunder; and further jointly and severally agree to indemnify the Escrow Agent and save it harmless against any and all losses, liabilities, claims, actions, damages and expensesexpenses and for anything done, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, suffered or omitted by the Escrow Agent shall in no event be liable in connection with the execution of its investment or reinvestment duties and powers hereunder, except as a result of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from Escrow Agent's gross negligence or willful misconduct) in . As between the investment or reinvestment of Company and Buyer, any amounts payable to the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and preceding sentence shall not be liable for any action taken or omitted in good faith and in accordance with such advicepayable by Buyer.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited may resign its duties and be discharged from all further duties and liabilities hereunder but is serving (except liabilities arising as escrow holder only. Any payments a result of income from the Escrow Account Agent's own gross negligence or willful misconduct), after giving prior notice to the Company and Buyer, such resignation and discharge to be effective as hereinafter provided. With the prior consent of the Company (which consent shall not be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide unreasonably withheld or delayed), Buyer may remove the Escrow Agent upon at least 10 days' prior notice, and the Escrow Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder (except as aforesaid), such removal and discharge to be effective as hereinafter provided. No such resignation or removal shall take effect until a new escrow agent which Buyer and the Company shall have approved in writing (such approval not to be unreasonably withheld or delayed) shall have been appointed and shall have agreed to assume the Escrow Agent's duties hereunder, as hereinafter provided. After such a new escrow agent shall accept such appointment in writing, such new escrow agent shall be vested with appropriate W-9 forms the same powers, rights, property, duties and responsibilities as if it had been originally named herein as Escrow Agent, without any further assurance, conveyance, act or deed; but if for tax I.D.any reason it shall be necessary or expedient to execute and deliver any further assurance, number certificationconveyance, act or non-resident alien certifications. This paragraph (f) deed, the same shall be done and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement be legally and validly executed and delivered by the resigning or the resignation of the removed Escrow Agent.
(g) The Escrow Agent makes no representation as Notwithstanding anything in this Agreement that may be to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
contrary: (i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, if the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day receive notice advising that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made litigation in connection with the Escrowed Property, the Tender Offer Agreement or in the event that this Agreement has been commenced, the Escrow Agent may deposit the Escrowed Property with the Clerk of the Court in good faith which said litigation is pending; or (ii) the Escrow Agent may deposit the Escrowed Property in doubt as a court of competent jurisdiction and commence an action for interpleader, the costs thereof to what action it should take hereunderbe borne jointly and severally by Buyer and the Company. Upon the occurrence of any of the foregoing events set forth in the preceding sentence, the Escrow Agent shall be entitled to retain the Escrowed Property until automatically released of and from all liability hereunder.
(h) Nothing herein shall preclude the Escrow Agent shall have received from acting in any other capacity for Buyer, the Company or any of their respective affiliates.
(i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse may consult with outside legal counsel at the Escrowed Property in accordance with such order or agreement. Any court order referred reasonable expense of [Buyer] as to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or matter relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Samples: Escrow Agreement (First of Michigan Capital Corp), Escrow Agreement (FMCC Acquisition Corp)
Concerning the Escrow Agent. To induce A. The Escrow Agent shall have no duties or responsibilities except those expressly set forth herein. The Escrow Agent may consult with counsel and shall have no liability hereunder except for its own negligence or willful misconduct. It may rely on any notice, instruction, certificate, statement, request, consent, confirmation, agreement or other instrument which it reasonably believes to be genuine and to have been signed or presented by a proper person or persons.
B. The Escrow Agent shall have no duties with respect to any agreement or agreements with respect to any or all of the Escrow Funds other than as provided in this Agreement. In the event that any of the terms and provisions of any other agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all respects. Notwithstanding any provision to the contrary contained in any other agreement, the Escrow Agent shall have no interest in the Escrow Funds except as provided in this Agreement.
C. So long as the Escrow Agent shall have any obligation to act pay any amount to the Indemnitor and/or the Indemnitee from the Escrow Funds hereunder, it is further agreed by the Company Escrow Agent shall keep proper books of record and Placement Agent that:account, in which full and correct entries shall be made of all receipts, disbursements and investment activity in the Escrow Account.
(a) D. The Escrow Agent shall not be under bound by any duty to give modification of this Agreement affecting the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property rights, duties and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties obligations of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations Agent, unless such modification shall be read into this Escrow Agreement against in writing and signed by the other parties hereto and the Escrow Agent. The Escrow Agent shall not be bound by any other modification of this Agreement unless the provisions Escrow Agent shall have received written notice thereof.
E. The Escrow Agent may resign as escrow agent at any time by giving thirty (30) days written notice by registered or certified mail to the Indemnitee and Indemnitor and such resignation shall take effect at the end of such thirty (30) days or upon earlier appointment of a successor. A successor escrow agent hereunder may be appointed by designation in writing signed by the Indemnitee and Indemnitor. The Indemnitee and the Indemnitor undertake to utilize their best efforts to arrange for the appointment of a successor escrow agent. If any agreement among instrument of acceptance by a successor escrow agent shall not have been delivered to the Escrow Agent within sixty (60) days after the giving of such notice of resignation, the resigning Escrow Agent may at the expense of the Indemnitee and the Indemnitor petition any court of competent jurisdiction for the appointment of a successor escrow agent.
F. If at any time hereafter the Escrow Agent shall resign, be removed, be dissolved or otherwise become incapable of acting, or the bank or trust company acting as the Escrow Agent shall be taken over by any governmental official, agency, department or board, or the position of the Escrow Agent shall become vacant for any of the foregoing reasons or for any other parties hereto except reason, the Indemnitee and the Indemnitor shall appoint a successor escrow agent to fill such vacancy.
G. Every successor escrow agent appointed hereunder shall execute, acknowledge and deliver to its predecessor, and also to the Indemnitee and the Indemnitor an instrument in writing accepting such appointment hereunder, and thereupon such successor escrow agent, without any further act, shall become fully vested with all rights, immunities and powers and shall be subject to all of the duties and obligations, of its predecessor; and every predecessor escrow agent shall deliver all property and monies held by it hereunder to its successor.
H. The fee charged by the Escrow Agent for performing its services hereunder shall be paid by the Indemnitee. Except as provided in subsection 7(I) hereof, the Indemnitee and the Indemnitor shall share equally any reasonable out-of-pocket costs incurred by the Escrow Agent in performing its duties hereunder. This covenant shall survive termination of this Escrow Agreement.
(c) I. The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, Indemnitee and the other parties hereto Indemnitor shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) harmless from and against any and all lossesexpenses (including reasonable attorneys' fees), liabilities, claims, damages, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, suits or other charges ("Agent Claims") incurred by or assessed against the Escrow Agent shall for anything done or omitted by the Escrow Agent in no event be liable in connection with its investment or reinvestment the performance of any cash held by it hereunder in good the Escrow Agent's duties hereunder, except such which result from the Escrow Agent's bad faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow . Agent Claims payable hereunder shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine paid one-half by the authenticity or Indemnitee and one-half by the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certificationsIndemnitor. This paragraph (f) and paragraph (c) of this Section 7 indemnity shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow AgentAgent or the termination of this Agreement.
(g) The J. To the extent any amount due to the Escrow Agent makes no representation as pursuant to the validity, value, genuineness Sections 7(H) or the collectibility of any security or other document or instrument held by or delivered to it.
(h7(I) The Escrow Agent shall is not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignationpaid, the Escrow Agent shall deliver may deduct the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon same from the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. Account.
K. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time fees shall be to keep Four Hundred ($400.00) Dollars per year, payable in advance on the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith date this Agreement is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable feesand on each subsequent anniversary date thereof, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions long as the Escrow Agent's name or the rights, powers, or duties Agent is holding any of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the ProspectusFunds hereunder.
Appears in 1 contract
Samples: Tax Escrow Agreement (Productivity Technologies Corp /)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent Agents that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the each Placement Agent or at any time may resign by giving written notice to such effect to the Company and the each Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-non- appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinaboveherein above, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Placement Agency Agreement (Goodrich Petroleum Corp)
Concerning the Escrow Agent. To induce (a) Each Interested Party acknowledges and agrees that the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(ai) The Escrow Agent shall not be under responsible for any duty of the agreements referred to give or described herein (including, without limitation the Escrowed Property held by it hereunder any greater degree Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of care than it gives such duties as are expressly and specifically set forth in this Agreement on its own similar property part to be performed, each of which is ministerial (and shall not be required construed to invest any funds held hereunder except as directed be fiduciary) in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any nature, and all matters pertinent hereto. No no implied duties or obligations of any kind shall be read into this Escrow Agreement against or on the Escrow Agent. The Escrow Agent shall not be bound by the provisions part of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely protected in acting or refraining from acting upon any order, judgment, certification, demand, written notice, instrument instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other writing delivered document furnished to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature and believed by it in good faith to be genuine and to have been signed or presented by the proper person, and shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may assumeconsult counsel satisfactory to it, if in good faithincluding in-house counsel, that any person purporting to give notice or receipt and the opinion or advice or make of such counsel in any statement or execute any document instance shall be full and complete authorization and protection in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice respect of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such advicecounsel.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(hb) The Escrow Agent shall not be called upon liable to advise any party as to the wisdom of selling or retaining or taking or refraining from anyone for any action with respect taken or omitted to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations taken by it hereunder by except in the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto case of the Escrow Agent's written notice gross negligence or willful misconduct in breach of resignationthe terms of this Agreement. If at that time In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent has not received a designation been informed of a successor escrow agentthe likelihood of such loss or damage and regardless of the form of action, unless due to the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent willful misconduct or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdictionfraud.
(jc) The Escrow Agent shall have no more or less responsibility for the contents or liability on account of any writing action or omission of any third party contemplated herein as a means book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to resolve disputes and may rely without the Escrow Agent, except to the extent that such action or omission of any liability upon book-entry depository, securities intermediary or other subescrow agent was caused by the contents thereofEscrow Agent's own gross negligence or willful misconduct in breach of this Agreement.
(kd) In the event The Escrow Agent is hereby authorized, in making or disposing of any disagreement among investment permitted by this Agreement, to deal with itself (in its individual capacity) or between the other parties hereto and/or the subscribers with any one or more of the Shares resulting in adverse claims its affiliates, whether it or demands being made in connection with the Escrowed Property, or in the event that such affiliate is acting as a subagent of the Escrow Agent or for any third person or dealing as principal for its own account.
(e) Notwithstanding any term appearing in good faith is this Agreement to the contrary, in doubt as to what action it should take hereunder, no instance shall the Escrow Agent shall be entitled required or obligated to retain the Escrowed distribute any Escrow Property until (or take other action that may be called for hereunder to be taken by the Escrow Agent shall have received Agent) sooner than two (2) Business Days after (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of it has received the Escrowed Property applicable documents required under this Agreement in good form, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery passage of the Escrowed Propertyapplicable time period (or both, in which event as applicable under the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part terms of this Escrow Agreement Agreement), as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)case may be.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce 4.1 Duties and Responsibilities of the Escrow Agent Agent. The Escrow Agent's duties and responsibilities shall be subject to act hereunder, it is further agreed by the Company following terms and Placement Agent thatconditions:
(a) The Holders and Company acknowledge and agree that the Escrow Agent (i) shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property responsible for or bound by, and shall not be required to invest any funds held hereunder except inquire into whether either the Holders or Company is entitled to receipt of the Escrowed Stock pursuant to, the Subscription Agreement or otherwise; (ii) shall be obligated only for the performance of such duties as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of are specifically assumed by the Escrow Agent with respect pursuant to any this Agreement; (iii) may rely on and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence protected in acting or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) refraining from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely acting upon any order, judgment, certification, demand, written notice, instrument instruction, instrument, statement, request or other writing delivered document furnished to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature and believed by it in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the pro- priety or validity or the service thereof; (iv) may assume, if in good faith, 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; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Holders and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the right or powers conferred upon Escrow Agent by this Agreement. The Holders and Company, jointly and severally, agree to indemnity and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees and costs of outside counsel in defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Holders and Company under this Agreement and to no other person.
(c) The holders and Company jointly and severally agree to reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including reasonable counsel fees) incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving thirty (30) days' prior written notice of resignation to the Holders and the Company Prior to the effective date of the resignation as specified in such notice, the Holders and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Escrowed Stock to a substitute Escrow Agent selected by the Holders and Company. If no successor Escrow Agent is named by the Holders and Company, the Escrow Agent may apply to a court of competent jurisdiction in the state of New York or any federal court located in the state of New York for appointment of a successor Escrow Agent.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement does not have and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does will not have any interest in the Escrowed Property deposited hereunder Stock, but is serving only as escrow holder onlyholder, having only possession thereof. Any payments of income The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, respect to any and all matters pertinent thereto and no implied duties or non-resident alien certifications. This paragraph (f) and paragraph (c) of obligations shall be read into this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow AgentAgreement.
(g) The Escrow Agent makes no representation shall be permitted to act as counsel for the Holders or the Company, as the case may be, in any dispute as to the validitydisbursement of the Escrowed Stock or in any other dispute between the Holders and Company, value, genuineness whether or not the collectibility of any security or other document or instrument held by or delivered Escrow Agent is then holding the Escrowed Stock and continues to itact as the Escrow Agent hereunder.
(h) The Escrow Agent provisions of this Section 4.1 shall not be called upon to advise any party as to survive the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on or the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent undersigned that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liable, except liable for any action or failure to act in its own gross negligence capacity as Escrow Agent hereunder unless such action or willful misconduct, and, except with respect failure to claims based upon such gross negligence or act shall constitute willful misconduct that are successfully asserted against on the part of the Escrow Agent, and the other parties hereto in which case there shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in be no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delaysindemnification obligations.
(dc) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faithunless he has actual knowledge to the contrary, 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.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except as provided in paragraph 8(b) above.
(fe) The Escrow Agent does not have any interest in the Escrowed Property Debentures, Conversion Shares, Escrow Fund or any other property deposited hereunder but is serving as escrow holder only. Any payments only and having only possession thereof, and is not charged with any duty or responsibility to determine the validity or enforceability of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agentsuch documents.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(if) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by delivering the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property Debentures to any successor escrow agent Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement thereafter. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Debentures and not make delivery or disposition thereof until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kg) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyDebentures, or in the event that the Escrow Agent in good faith is in doubt as to what action it otherwise determines that the Debentures should take hereunderbe retained, then the Escrow Agent shall be entitled to may retain the Escrowed Property Debentures until the Escrow Agent shall have received (i) a final and non-appealable nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Debentures, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyDebentures, in which event case the Escrow Agent shall disburse promptly deliver the Escrowed Property Debentures in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party reasonably satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablenonappealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(lh) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this This Escrow Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as if herein set forth). In addition, the Company agrees provided in paragraph (g) with respect to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made a resignation by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agent.
(m) All parties hereto irrevocably (i) submit This Escrow Agreement may be modified by a writing signed by all the parties hereto, and no waiver hereunder shall be effective unless in a writing signed by the party to the jurisdiction of any New York State or federal court sitting in New York City be charged.
(j) Lakota acknowledges and agrees that in any action dispute involving the Agreement, Debentures or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding Escrow Agent may represent Purchaser's interests and shall be heard and determined in such New York State or federal court and (iii) waive, not have a conflict of interest due to the fullest extent possible, the defense fact that Escrow Agent is also acting as an escrow agent pursuant to this Escrow Agreement and Lakota hereby waives any right which it may have had to assert a conflict of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding interest in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofabsence of this Section 8(j).
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce 4.1. Duties and Responsibilities of the Escrow Agent Agent. The Escrow Agent's duties and responsibilities shall be subject to act hereunder, it is further agreed by the Company following terms and Placement Agent thatconditions:
(a) The Purchaser and the Company acknowledge and agree that the Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and (i) shall not be required to invest inquire into whether the Purchaser, the Company or any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder other party is entitled to receipt of any Document or all or any portion of the Escrowed Payment; (ii) shall not earn be called upon to construe or accrue interest.
review any Document or any other document, instrument or agreement entered into in connection therewith; (biii) This Escrow Agreement expressly sets forth all shall be obligated only for the performance of such duties of as are specifically assumed by the Escrow Agent with respect pursuant to any this Agreement; (iv) may rely on and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faithfaith to be genuine and to have been signed or presented by the proper person or party, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent ; (v) may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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; (vi) shall not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent's choosing), the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Purchaser and the Company hereby, jointly and severally, indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives from and against any and all actions taken or omitted to be taken by Escrow Agent or any of them hereunder and any and all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the Escrow Agent arising in any manner whatsoever out of the transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the fees of outside counsel and other costs and expenses of defending itself against any claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the transactions contemplated by this Agreement and/or any transaction related in any way hereto, except for such claims, losses, liabilities, costs, damages and expenses incurred by reason of the Escrow Agent's gross negligence or willful misconduct. The Escrow Agent shall owe a duty only to the Purchaser and the Company under this Agreement and to no other person.
(c) The Purchaser and the Company shall jointly and severally reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including counsel fees (which counsel may be Loeb & Loeb LLP or such other counsel of the Escrow Agent's choosing) incurred in connection with the performance of its duties and responsibilities hereunder, which shall not (subject to Section 4.1(b)) exceed $1,500.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) business days prior written notice of resignation to the Purchaser and the Company. Prior to the effective date of resignation as specified in such notice, the Purchaser and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Documents and the Escrowed Payment to a substitute Escrow Agent selected by the Purchaser and the Company. If no successor Escrow Agent is named by the Purchaser and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and deposit the Documents and the Escrowed Payment with the clerk of any such court and/or otherwise commence an interpleader or similar action for a determination of where to deposit the same.
(e) The Escrow Agent may act pursuant to does not have and will not have any interest in the advice of counsel with respect to any matter relating to this Documents and the Escrowed Payment, but is serving only as escrow agent, having only possession thereof.
(f) The Escrow Agreement and Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be Loeb & Loeb, LLP or such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation other counsel of the Escrow Agent's choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except to the extent any such liability arose from its own willful misconduct or gross negligence.
(g) The This Agreement sets forth exclusively the duties of the Escrow Agent makes with respect to any and all matters pertinent thereto and no representation as to the validity, value, genuineness implied duties or the collectibility of any security or other document or instrument held by or delivered to itobligations shall be read into this Agreement.
(h) The Escrow Agent shall not be called upon permitted to advise act as counsel for the Purchaser or the Company, as the case may be, in any party dispute as to the wisdom disposition of selling the Documents and the Escrowed Payment, in any other dispute between the Purchaser and the Company, whether or retaining or taking or refraining from any action with respect not the Escrow Agent is then holding the Documents and/or the Escrowed Payment and continues to any securities or other property deposited act as the Escrow Agent hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by provisions of this Section 4.1 shall survive the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on or the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the The Escrow Agent has been induced to act hereunder, it is further agreed accept its obligations under this Escrow Agreement by the Company following terms and Placement Agent thatconditions:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, VSI and the other parties hereto shall Shareholders jointly and severally shall indemnify and hold harmless the Escrow Agent (and any successor Escrow Agentescrow agent) from and against any and all lossesclaims, liabilities, claimslosses, actionsdamages, damages and expensescosts, including reasonable attorneys' fees and disbursements, other expenses whatsoever arising directly or indirectly out of and or in connection with Escrow Agent's service as Escrow Agent under this Escrow Agreement or otherwise by virtue of this Escrow Agreement. Without limiting .
(b) In the foregoingevent of any disagreement among the parties to this Escrow Agreement, or among them or any one of them and any other person, resulting in adverse or conflicting claims or demands being made in connection with all or any part of the Escrow Shares, or in the event that the Escrow Agent is in doubt as to what action it should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on it (but nothing herein shall in no event be liable in connection with its investment obligate the Escrow Agent so to do) until (i) the Escrow Agent shall have received an order of a court of competent jurisdiction directing delivery of all or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment part of the Escrowed PropertyEscrow Shares or otherwise directing the Escrow Agent to take action pursuant to this Agreement, or any loss of interest incident (ii) all differences shall have been adjusted and all doubt resolved by written agreement executed by the parties to any such delaysdisagreement.
(dc) The Escrow Agent shall not be required to construe or interpret the Merger Agreement or any related documents. The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent thereof and may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give any 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.
(d) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto, and the Escrow Agent undertakes to perform only those duties and obligations which are set forth herein.
(e) The Escrow Agent may act pursuant shall be entitled to the advice of counsel with respect to any matter relating to this Escrow Agreement concerning all matters and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder onlyduties hereunder. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise responsible for any party as to the wisdom of selling loss or retaining or taking or refraining damage resulting from any action with respect taken or omitted to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent taken in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property reliance upon that opinion or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further questionadvice.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Escrow Agreement (Munro Mark E)
Concerning the Escrow Agent. To induce Notwithstanding any provision contained herein to the contrary, but subject to the last sentence of clause (k) below, the Escrow Agent to act hereunderAgent, it is further agreed by the Company including its officers, directors, employees and Placement Agent thatagents, shall:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted under this Agreement so long as it shall have acted in good faith and in accordance with such advice.without gross negligence or willful misconduct;
(fb) The Escrow Agent does not have any interest in no responsibility to inquire into or determine the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D.genuineness, number certificationauthenticity, or non-resident alien certifications. This paragraph (f) and paragraph sufficiency of any securities, checks, or other documents or instruments submitted to it in connection with its duties hereunder;
(c) be entitled to deem the signatories of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement documents or the resignation instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the Escrow Agent.
(g) The Escrow Agent makes no representation as parties hereto, and shall be entitled to rely upon the validity, value, genuineness or of the collectibility signatures of such signatories without inquiry and without requiring substantiating evidence of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignationkind, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event provided that the Escrow Agent in good faith is believes such signatories are authorized and such signatures are genuine;
(d) be entitled to refrain from taking any action contemplated by this Agreement in doubt the event that it becomes aware of any disagreement between the parties hereto as to what action it should take any facts or as to the happening of any contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investments or reinvestment made in accordance with Section 2;
(f) be entitled to compensation for its services hereunder, to be paid 50% by the Seller and 50% by the Buyer as per Exhibit A attached hereto, which is made a part hereof, and for reimbursement of its reasonable out-of-pocket expenses including, but not by way of limitation, the reasonable fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties hereunder, all to be paid by the Seller and the Buyer;
(g) be entitled and is hereby granted the right to set off and deduct any unpaid fees, non-reimbursed reasonable out-of-pocket expenses and unsatisfied indemnification rights from amounts on deposit in the Escrow Account;
(h) be under no obligation to invest the deposited funds or the income generated thereby until it has received a Form W-9 from the Seller and the Buyer, regardless of whether such party is exempt from reporting or withholding requirements under the Internal Revenue Code of 1986, as amended;
(i) be, and hereby is, jointly and severally indemnified and saved harmless by the Seller and the Buyer from all losses, liabilities, reasonable costs and reasonable expenses, including reasonable attorney fees and expenses, which may be incurred by it as a result of its acceptance of the Escrow Account or arising from the performance of its duties hereunder, unless such losses, liabilities, costs and expenses shall have been finally adjudicated to have been primarily caused by the bad faith, willful misconduct or gross negligence of the Escrow Agent, and such indemnification shall survive its resignation or removal, or the termination of this Agreement;
(j) in the event that (i) any dispute shall arise between the parties with respect to the disposition or disbursement of any of the assets held hereunder or (ii) the Escrow Agent shall be entitled uncertain as to retain how to proceed in a situation not explicitly addressed by the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order terms of a court this Agreement whether because of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed conflicting demands by the other parties hereto and consented or otherwise, be permitted to by the subscribers directing delivery interplead all of the Escrowed Propertyassets held hereunder into a court of competent jurisdiction, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order and thereafter be fully relieved from any and all liability or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims obligation with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient foruminterpleaded assets. The parties hereto other parties hereby consent than the Escrow Agent further agree to and grant pursue any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery redress or mailing of process or other papers recourse in connection with any such action or proceeding in a dispute, without making the manner Escrow Agent a party to same;
(k) have only those duties as are specifically provided hereinaboveherein, or in such other manner as may be permitted by law, which shall be valid deemed purely ministerial in nature, and sufficient service thereof.
(n) No printed or other matter in shall under no circumstance be deemed a fiduciary for any language (including, without limitation, of the Registration Statement, the Prospectus, notices, reports parties to this Agreement; and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties no additional obligations of the Escrow Agent shall be issued by inferred from the terms of this Agreement or any other agreement. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument or document between the other parties hereto hereto, in connection herewith, including without limitation the Purchase Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (i) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S, BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (ii) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
(l) have the right, but not the obligation, to consult with counsel of choice and shall not be liable for action taken or on omitted to be taken by Escrow Agent in accordance with advice of such parties' behalf unless counsel or any opinion of counsel to the Seller addressed and delivered to the Escrow Agent; and
(m) have the right to perform any of its duties hereunder through its agents, attorneys, custodians or nominees. Any banking association or corporation into which the Escrow Agent may be merged, converted or with which the Escrow Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall first have given its specific written consent theretobe a party, or any banking association or corporation to which all or substantially all of the corporate trust business of the Escrow Agent shall be transferred, shall succeed to all the Escrow Agent’s rights, obligations and immunities hereunder without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding. The Escrow Agent hereby consents shall provide prompt notice to the use of its name Buyer and the reference to the escrow arrangement in the Registration Statement and in the ProspectusSeller of any such transfer.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent parties hereto that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liableliable for any action or failure to act in its capacity as Escrow Agent hereunder unless such action or failure to act shall constitute gross negligence or willful misconduct on the part of the Escrow Agent, except for its own in which case there shall be no indemnification obligations as provided in Paragraph 4, and the Escrow Agent shall indemnify and hold harmless the Seller, Buyer and their respective officers, directors, agents and employees from and against any loss, cost or expense (including reasonable attorneys’ fees) that they may suffer or incur as a consequence of such gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(dc) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder (collectively a “Notice”) without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent will confirm the receipt and content of any Notice with the other parties. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faithunless it has actual knowledge to the contrary, that any person purporting to give notice 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.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except as provided in paragraph 7(b) above.
(fe) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from only and having only possession thereof, and is not charged with any duty or responsibility to determine the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, validity or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility enforceability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereundersuch document.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties resign as such by delivering the Stock Certificate(s) and obligations hereunder by the delivery to it of notice of termination signed by both the Company Documents and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property Purchase Funds to any successor escrow agent Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement thereafter. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's ’s sole responsibility after that time shall be to safe keep the Escrowed Property safe deposited Stock Certificate(s) and Documents and Purchase Funds and not make delivery or disposition thereof until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyStock Certificate(s), Documents or Purchase Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it otherwise determines that the Stock Certificates, Documents and/or Purchase funds should take hereunderbe retained, then the Escrow Agent shall be entitled to may retain the Escrowed Property Stock Certificate(s), Documents and/or Purchase Funds until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Stock Certificate(s) and/or Purchase funds, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyStock Certificate(s), Documents and/or Purchase Funds, in which event case the Escrow Agent shall disburse promptly deliver the Escrowed Property Stock Certificate(s), Documents and/or Purchase Funds in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party reasonably satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order make no independent determination regarding the Stock Certificate(s), Documents or Purchase Funds absent the filing and notice of a legal opinion without further questionaction by one or both of the parties.
(lk) As consideration for its agreement This Agreement shall be binding upon and inure solely to act the benefit of the parties hereto and their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as Escrow Agent as herein described, the Company agrees provided in paragraph 7(g) with respect to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made resignation by the Escrow Agent. Each entity that is a party hereto represents and warrants that they have the full power and authority to bind the entity and that Escrow Agent may rely upon such representation with out further inquiry. This Agreement may be modified only in performance writing, signed by all of its duties the parties hereto, and no waiver hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined effective unless in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued writing signed by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents party to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectusbe charged.
Appears in 1 contract
Samples: Stock Purchase Agreement (VOIS Inc.)
Concerning the Escrow Agent. To induce (a) Each party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to act hereunderor described herein (including without limitation the Reorganization Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it is further agreed to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting (or, if so requested, refraining from acting) upon and in accordance with any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate (including without limitation the certificates referenced in Sections 5(a), 5(b) and 5(c) hereof), request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the Company proper person, and Placement Agent that:shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(ab) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrowed Property held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent's gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any agreement among such loss or damage and regardless of the other parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, may resign and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving at least 30 days' prior written notice of such resignation to such effect to the Company Parent and the Placement Agent. Upon any Stockholders specifying a date upon which such termination or resignationresignation shall take effect; provided, however, that the Escrow Agent shall deliver -------- ------- continue to serve until its successor accepts the Escrowed Property to any Escrow Fund. Upon receipt of such notice, a successor escrow agent jointly designated shall be appointed by Parent and the other parties hereto Stockholders, such successor escrow agent to become the Escrow Agent hereunder on the resignation date specified in writingsuch notice. If a written instrument of acceptance by a successor escrow agent shall not have been delivered to the Escrow Agent within 40 days after the giving of such notice of resignation, or to the resigning Escrow Agent may at the expense of Parent and the Stockholders petition any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) for the appointment of a successor (including escrow agent. Parent and the Stockholders, acting jointly, may at any time substitute a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) new escrow agent by giving 10 days' prior written notice thereof to the Escrow Agent then acting and by Parent and the Stockholders paying all fees and expenses of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the such Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein accrued as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofdate.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Aristotle Corp)
Concerning the Escrow Agent. To induce (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to act hereunderor described herein (including without limitation the Security Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it is further agreed to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the Company proper person, and Placement shall have no responsibility for making inquiry as to or determining the genuineness, accuracy or validity thereof, or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this Section 9(a) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent that:as having been signed or presented by a person if it bears, as sender, the person’s e-mail address.
(ab) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrowed Property held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any agreement among such loss or damage and regardless of the other parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except for its to the extent that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out in breach of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, or the propriety or validity in carrying out any sale of the service thereof. The Escrow Property permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the Escrow Agent may act in reliance upon or for any instrument third person or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do sodealing as principal for its own account.
(e) The Escrow Agent may act pursuant Notwithstanding any term appearing in this Agreement to the advice of counsel with respect to any matter relating to this Escrow Agreement and contrary, in no instance shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms be required or obligated to distribute any Escrow Property (or take other action that may be called for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of hereunder to be taken by the Escrow Agent.
) sooner than two (g2) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
Business Days after (i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by it has received the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignationapplicable documents required under this Agreement in good form, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent passage of the other parties' notice of termination applicable time period (or (B) to both, as applicable under the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part terms of this Escrow Agreement Agreement), as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)case may be.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to act hereunderor described herein (including without limitation the Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it is further agreed to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the Company proper person, and Placement Agent that:shall have no responsibility to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(ab) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrowed Property held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent's gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any agreement among such loss or damage and regardless of the other parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except for its to the extent that such action or omission of any book-entry depository, securities intermediary or other sub escrow agent was caused by the Escrow Agent's own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out in breach of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, to deal with itself (in its individual capacity) or the propriety with any one or validity more of its affiliates, whether it or such affiliate is acting as a subagent of the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may act pursuant be called for hereunder to be taken by the advice of counsel with respect to any matter relating to Escrow Agent) sooner than three (3) Business Days after (i) it has received the applicable documents required under this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such adviceform, or (ii) passage of the applicable time period (or both, as applicable under the terms of this Agreement), as the case may be.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any All payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time hereunder shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdictionin U.S. dollars.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company Company, the Selling Shareholder and the Placement Agent Agents that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company Company, the Selling Shareholder and the Placement Agent Agents or at any time may resign by giving written notice to such effect to the Company Company, the Selling Shareholder and the Placement AgentAgents. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares Securities resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth)$5,000. In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Placement Agency Agreement (Thoratec Laboratories Corp)
Concerning the Escrow Agent. To induce Notwithstanding any provision contained herein to the contrary, the Escrow Agent to act hereunderAgent, it is further agreed by the Company including its officers, directors, employees and Placement Agent thatagents, shall:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted under this Escrow Agreement so long as it shall have acted without fraud, malice or gross negligence; and shall have no responsibility beyond the exercise of ordinary care to inquire into or determine the genuineness, authenticity, or sufficiency of any securities, checks, or other documents or instruments submitted to it in connection with its duties hereunder;
(b) upon the exercise of ordinary care, be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto, and, absent any obvious indication of forgery or fraud, shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind; and have no liability for acting upon any written and/or facsimile and/or e-mail instructions presented by the City, the Authority or the Bank in connection with the Escrow Agreement which the Escrow Agent in good faith faith, and exercising ordinary care, believes to be genuine;
(c) be entitled to refrain from taking any action contemplated by this Escrow Agreement in the event that it becomes aware of any disagreement between the parties hereto pertaining to disbursements from the Equipment Acquisition Fund, execution of an Acceptance Certificate or satisfaction of a Payment Request;
(d) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investments or reinvestment made in accordance with such advice.any investment or reinvestment instruction from the City’s representative;
(e) be entitled to compensation for its services hereunder as per Exhibit B, which is attached hereto and made a part hereof, and for reimbursement of its reasonable out-of- pocket expenses including, but not by way of limitation, the reasonable fees and costs of attorneys in an amount not to exceed $ or agents which it may find necessary to engage in performance of its duties hereunder, all to be paid by the City;
(f) The Escrow Agent does to the extent authorized by Pennsylvania law (including, but not have any interest in limited to the Escrowed Property deposited hereunder but is serving provisions of the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A. § 8541, et seq., as escrow holder only. Any payments of income from the Escrow Account shall be amended) and subject to withholding regulations then in force with respect to United States taxes. The parties applicable Pennsylvania constitutional limitations, be indemnified and saved harmless by the City hereto will provide from all losses, costs, and expenses, including reasonable attorney fees which may be incurred by the Escrow Agent as a result of its acceptance of the Equipment Acquisition Fund or arising from the performance of its duties hereunder, unless the Escrow Agent shall have acted with appropriate W-9 forms for tax I.D.negligence or willful misconduct, number certificationand such indemnification shall survive its resignation or removal, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any the termination of this Escrow Agreement or the resignation until extinguished by any applicable statute of the Escrow Agent.limitations;
(g) The in the event any dispute shall arise between the parties with respect to the disposition or disbursement of any of the assets held hereunder, be permitted to interplead all of the assets held hereunder into a court of competent jurisdiction, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets, unless the basis for the dispute is related to the Escrow Agent’s failure to perform according to the terms of this Escrow Agreement; the parties further agree to pursue any redress or recourse in connection with such a dispute not related to the Escrow Agent’s failure to perform according to the terms of this Escrow Agreement, without making the Escrow Agent makes no representation as a party to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.same;
(h) The Escrow Agent shall not be called upon to advise any party only have those duties as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignationare specifically provided herein, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent which shall be discharged deemed purely ministerial in nature, and shall under no circumstance be deemed a fiduciary for any of and from any and all further obligations arising in connection with the parties to this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent neither be responsible for, nor chargeable with, knowledge of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents terms and conditions of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among other agreement, instrument, or document between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made hereto, in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreementherewith. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this This Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for and all reasonable expenses, disbursements attachments and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating exhibits to this Escrow Agreement, (ii) agree that sets forth all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, matters pertinent to the fullest extent possibleescrow contemplated hereunder, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties no additional obligations of the Escrow Agent shall be issued inferred from the terms of this Escrow Agreement or any other Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, INDIRECTLY, FOR ANY (i) DAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES WHICH RESULT FROM THE ESCROW AGENT’S FAILURE TO ACT ON INVESTMENT DIRECTION FROM THE CITY’S REPRESENTATIVE IN ACCORDANCE WITH THE REASONABLE COMMERCIAL STANDARDS OF THE BANKING BUSINESS, OR (ii) CONSEQUENTIAL DAMAGES;
(i) have the right to perform any of its duties hereunder through agents, attorneys, custodians or nominees; and
(j) not be required by any provision of this Escrow Agreement to expend or risk its own funds in the other parties hereto performance of its duties if it shall have reasonable grounds for believing that repayment of such funds is not reasonably assured to it. Any banking association or on such parties' behalf unless corporation into which the Escrow Agent (or substantially all of its corporate trust business) may be merged, converted or with which the Escrow Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall first have given its specific written consent thereto. The be a party, succeeds to all the Escrow Agent hereby consents Agent’s rights, obligations and immunities hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, except as to notice to the use of its name City, the Authority and the reference to Bank of the escrow arrangement in the Registration Statement and in the Prospectussuccession.
Appears in 1 contract
Samples: Lease Purchase Agreement
Concerning the Escrow Agent. To induce 4.1. Duties and Responsibilities of the Escrow Agent Agent. The Escrow Agent's duties and responsibilities shall be subject to act hereunder, it is further agreed by the Company following terms and Placement Agent thatconditions:
(a) The Purchaser and the Company acknowledge and agree that the Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and (i) shall not be required to invest inquire into whether the Purchaser, the Company or any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder other party is entitled to receipt of any Document or all or any portion of the Escrowed Payment; (ii) shall not earn be called upon to construe or accrue interest.
review any Document or any other document, instrument or agreement entered into in connection therewith; (biii) This Escrow Agreement expressly sets forth all shall be obligated only for the performance of such duties of as are specifically assumed by the Escrow Agent with respect pursuant to any this Agreement; (iv) may rely on and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faithfaith to be genuine and to have been signed or presented by the proper person or party, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent ; (v) may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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; (vi) shall not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent’s choosing), the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. Notwithstanding any Agreement to the contrary,the Purchaser and the Company hereby, jointly and severally, indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives from and against any and all actions taken or omitted to be taken by Escrow Agent or any of them hereunder and any and all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the Escrow Agent arising in any manner whatsoever out of the transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the fees of outside counsel and other costs and expenses of defending itself against any claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the transactions contemplated by this Agreement and/or any transaction related in any way hereto, except for such claims, losses, liabilities, costs, damages and expenses incurred by reason of the Escrow Agent’s negligence or willful misconduct. The Escrow Agent shall owe a duty only to the Purchaser and Company under this Agreement and to no other person.
(c) Notwithstanding any Agreement to the contrary, the Purchaser and the Company shall jointly and severally reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including counsel fees (which counsel may be Loeb & Loeb LLP or such other counsel of the Escrow Agent’s choosing) incurred in connection with the performance of its duties and responsibilities hereunder, which shall not (subject to Section 4.1(b)) exceed $2,000.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) business days prior written notice of resignation to the Purchaser and the Company. Prior to the effective date of resignation as specified in such notice, the Purchaser and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Documents and the Escrowed Payment to a substitute Escrow Agent selected by the Purchaser and the Company. If no successor Escrow Agent is named by the Purchaser and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and deposit the Documents and the Escrowed Payment with the clerk of any such court and/or otherwise commence an interpleader or similar action for a determination of where to deposit the same.
(e) The Escrow Agent may act pursuant to does not have and will not have any interest in the advice of counsel with respect to any matter relating to this Documents and the Escrowed Payment, but is serving only as escrow agent, having only possession thereof.
(f) The Escrow Agreement and Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be Loeb & Loeb, LLP or such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation other counsel of the Escrow Agent’s choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except to the extent any such liability arose from its own willful misconduct or gross negligence.
(g) The This Agreement sets forth exclusively the duties of the Escrow Agent makes with respect to any and all matters pertinent thereto and no representation as to the validity, value, genuineness implied duties or the collectibility of any security or other document or instrument held by or delivered to itobligations shall be read into this Agreement.
(h) The Escrow Agent shall not be called upon permitted to advise act as counsel for the Purchaser or the Company, as the case may be, in any party dispute as to the wisdom disposition of selling the Documents and the Escrowed Payment, in any other dispute between the Purchaser and the Company, whether or retaining or taking or refraining from any action with respect not the Escrow Agent is then holding the Documents and/or the Escrowed Payment and continues to any securities or other property deposited act as the Escrow Agent hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by provisions of this Section 4.1 shall survive the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on or the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Funds Escrow Agreement
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property Escrow Shares held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this the Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestShares.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety proprieties, validity or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give notice or advice, accept receipt of or advice execute any document, or make any statement or execute any document in connection with the provisions hereof hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and and, except for its own gross negligence or willful misconduct, the Escrow Agent shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from only and has no interest in the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certificationsShares deposited hereunder. This paragraph (fSection 3(f) and paragraph (cSection 3(c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, delivering the Escrow Agent shall deliver the Escrowed Property Shares to any successor escrow agent Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Escrow Shares until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the court or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyEscrow Shares, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Escrow Shares until the Escrow Agent shall have received (i) a final and non-appealable nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Escrow Shares, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyEscrow Shares, in which event the Escrow Agent shall disburse the Escrowed Property Escrow Shares in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablenonappealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(l) As consideration for its agreement Notwithstanding anything to act the contrary contained herein, in the event of any dispute between the parties hereto as Escrow Agent as herein describedto the facts of default, the Company agrees validity or meaning of these instructions or any other fact or matter relating to pay the transaction between the parties, the Escrow Agent is instructed as follows:
(i) that it shall be under no obligation to act, except under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) that it may in its sole and absolute discretion, deposit the fee set forth on Exhibit F hereto (made a part property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of this Escrow Agreement the District Court located in Denver, Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as if herein set forth). In additionto the property so deposited, and furthermore, the Company agrees parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to reimburse the jurisdiction of said court. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 3(c) above.
(m) Pubco, on the one hand, and the Stockholders, on the other hand, each agree to pay one-half of the Escrow Agent's fees for all the services hereunder, which shall be an aggregate amount of $1,500. All reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid allocated equally between Pubco, on the one hand, and sufficient service thereofthe Stockholders, on the other hand.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectusprospectuses, notices, reports and promotional materialmaterials) which mentions the Escrow Agent's name or the rights, powers, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) a. a. This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement by or among the other parties hereto except this Escrow Agreement.
(cb. Escrow Agent shall have no responsibility for determining the identity or authority of the signer(s) of, or the authenticity of the signature(s) found of any document containing an escrow instruction. Company hereby warrants that all signatures found on all documents delivered to Escrow Agent in connection with in escrow, including but not limited to escrow instructions are genuine, authorized, complete and valid. Escrow Agent shall rely on that warranty in acting on escrow instructions delivered to it.
c. The Escrow Agent acts as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited under this Escrow Agreement. The Escrow Agent makes no representation whatsoever as to the compliance of the transaction with any applicable state or federal laws, regulations, or rulings. The Escrow Agent has not made, nor will make, any representation regarding the Offering or the Company. Further, the Escrow Agent shall not be responsible for any representations or warranties made by the Company or Trading Platform concerning the transaction, Company or Trading Platform. Furthermore, the Escrow Agent shall not be responsible for the application or use of any funds released from the Escrow Account pursuant to this Escrow Agreement.
d. Except as expressly provided in this Escrow Agreement, the Escrow Agent shall be entitled to act entirely on the basis of written instructions received from the Trading Platform or Company and shall have no independent duty of inquiry regarding the basis for such instructions.
e. The Escrow Agent shall not be liable, except for its own gross negligence negligence, willful misconduct or willful misconductbreach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence or negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, and the other parties hereto Company shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays...
(d) f. The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety proprieties, validity or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give notice or advice, accept receipt of or advice execute any document, or make any statement or execute any document in is connection with the provisions hereof hereof, has been duly authorized to do so.
(e) g. The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) h. The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder onlyonly and has no interest in the Escrow Funds deposited hereunder. Any payments of income from the this Escrow Account Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto Company will provide the Escrow Agent with appropriate appropriame W-9 forms for tax I.D., identification number certification, certification or non-resident nonresident alien certifications. This paragraph (fSection 5(f) and paragraph (cSection 5(c) of this Section 7 shall survive notwithstanding notwithstandidg any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) i. The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other document or documents ok instrument held by or delivered to it.
(h) j. The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) k. The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by delivering the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property Funds to any successor escrow agent Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Funds until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction...
(j) l. The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof...
(k) In x. Xx the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyFunds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Funds until the Escrow Agent shall have received (i) received
i. a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (Funds or
ii) . a written agreement executed by the other parties party[ies] hereto and consented to by the subscribers directing delivery of the Escrowed PropertyFunds, in which event the Escrow Agent shall disburse the Escrowed Property Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion by of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(l) As consideration n. Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows::
i. That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its agreement failure to act pending such process or court order or indemnification; and
ii. That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with Clerk of the Court of Xxxxxxxx County, State of Kentucky, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent as herein described, the under Section 5(c) above.
o. The Company agrees to pay the Escrow Agent as compensation for the fee services of the Escrow Agent described herein, as set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth)in numbered paragraph 6 relow. In addition, the Company agrees to reimburse the Escrow Agent for pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)) agreed to by the parties herein.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No x. Xx printed or other matter material in any language (including, without limitation, the Registration Statement, the ProspectusOfferings, notices, reports and promotional materialmaterials) which mentions the Escrow Agent's name or the rights, powers, powers or duties of the Escrow Agent shall be issued by the any other parties party hereto or on such parties' party's behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectussuch mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Escrow Agreement (Legacyhub Multifamily Reit I, LLC)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent6.1. The Escrow Agent may resign at any time by giving notice to Parent and Shareholders specifying a date when the resignation shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The take effect. Upon such notice, a successor Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except appointed with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, unanimous consent of Parent and the other parties hereto shall jointly Shareholder Agent. If Parent and severally indemnify and hold harmless the Shareholder Agent are unable to agree upon a successor Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoingwithin 30 days after such notice, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofappoint its successor. The Escrow Agent shall continue to serve until its successor accepts the appointment and receives the Escrow Fund. Parent and the Shareholder Agent shall have the right at any time, upon their mutual consent, to substitute a new Escrow Agent by giving notice to the Escrow Agent then acting.
6.2. The Escrow Agent shall perform those duties specifically set forth in this Agreement and may act conclusively rely, and shall be protected in reliance upon acting or refraining from acting, on any written notice, instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice have been signed or receipt presented by the proper party or advice or make any statement or execute any document in connection with the provisions hereof has been duly parties authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes in this Agreement and may rely on its contents without any liability upon the contents thereofliability.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable6.3. The Escrow Agent shall act on such court order not be liable for any action taken or omitted by it in good faith and legal opinion without further questionbelieved by it to be authorized by this Agreement or within the rights or powers conferred upon it under this Agreement, or for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake or fact or error of judgment or for any acts or omissions of any kind unless caused by willful misconduct or negligence.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay 6.4. Each party shall indemnify the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for and hold it harmless from and against all reasonable expenses, disbursements and advances liabilities incurred or made by the Escrow Agent in performance under this Agreement as a consequence of its duties hereunder (including reasonable feesthat party's action, expenses and disbursements of its counsel).
(m) All the parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of jointly indemnify the Escrow Agent shall be issued and hold it harmless from and against all liabilities incurred by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The under this Agreement that are not a consequence of any party's action, except in either case for liabilities incurred by the Escrow Agent hereby consents to the use of resulting from its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectusown willful misconduct or negligence.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give and the Issuer acknowledge and agree that the Escrowed Property Funds shall be held by it hereunder the Escrow Agent for and on behalf of the Issuer, and that the Escrow Agent is acting exclusively as the agent, custodian and bailee of the Issuer, and not of any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestother party.
(b) This Escrow Agreement expressly sets forth all the duties The fee of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations hereunder is $3,000 per annum, which fee shall be read into this Escrow Agreement against nonrefundable and paid in advance by the Issuer. The Issuer also agrees to pay on demand the costs and expenses of the Escrow Agent. The Escrow Agent shall not be bound , including the fees and expenses of counsel selected by the provisions of any agreement among Escrow Agent, other than the other parties hereto except this Escrow Agreementcosts and expenses reimbursed pursuant to Section 6 hereof, incurred in connection with its duties hereunder.
(c) The Escrow Agent shall exercise the same degree of care toward the Escrowed Funds as it exercises toward its own similar property and shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delayshigher standard of care under this Agreement, nor be deemed to owe any fiduciary duty to the Issuer.
(d) The Escrow Agent shall be entitled to rely may act upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assumeto have been signed or presented by the proper person, if in good faith, that and shall not be liable to any person purporting to give notice or receipt or advice or make any statement or execute any document party hereto in connection with the provisions hereof has been duly authorized performance of its duties hereunder, except for its own negligence, willful misconduct or bad faith. The duties of the Escrow Agent shall be determined only with reference to do sothis Escrow Agreement and applicable laws and Escrow Agent is not charged with any knowledge of or any duties or responsibilities in connection with any other document or agreement. If in doubt as to its duties and responsibilities hereunder, the Escrow Agent may consult with counsel of its choice and shall be protected in any action taken or omitted in good faith in connection with the advice or opinion of such counsel.
(e) The Escrow Agent may act pursuant to the advice execute any of counsel with respect to its powers or responsibilities hereunder and exercise any matter relating to this Escrow Agreement and shall not be liable for any action taken rights hereunder either directly or omitted in good faith and in accordance with such adviceby or through its agents or attorneys.
(f) The Nothing in this Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account Agreement shall be subject deemed to withholding regulations then in force with respect to United States taxes. The parties hereto will provide impose upon the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, any duty to qualify to do business or non-resident alien certifications. This paragraph (f) and paragraph (c) to act as agent or otherwise in any jurisdiction other than the State of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow AgentNew York.
(g) The Escrow Agent shall not be responsible for and shall not be under a duty to examine into or pass upon the validity, binding effect, execution or sufficiency of this Escrow Agreement, any agreement amendatory or supplemental hereto or of any certificates delivered to it hereunder.
(h) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(hi) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining retaining, or taking or refraining from taking any action with respect to to, any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the Issuer at the address set forth herein or at such other address as the Issuer shall provide, at least 30 days prior to the date specified for such resignation to take effect. 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 a successor escrow agent. If no responsibility successor escrow agent is appointed, Escrow Agent may apply to a court of competent jurisdiction for such appointment. The Escrow Agent or any successor is not required to be the contents of any writing of any third party contemplated herein same entity as a means to resolve disputes and may rely without any liability upon the contents thereofTrustee under the Indenture.
(k) In the event of that Escrow Agent should at any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse time be confronted with inconsistent claims or demands being made in connection with to the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderFunds, the Escrow Agent shall be entitled have the right, but not the duty, to retain interplead the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a parties in any court of competent jurisdiction directing delivery and request that such court determine the respective rights of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented with respect to by the subscribers directing delivery of the Escrowed Property, in which Funds. In the event the Escrow Agent shall disburse the no longer holds any Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above Funds, it shall be accompanied by released from any obligation or liability as a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter consequence of any such dispute and agree that delivery claims or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofdemands.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce Notwithstanding any provision contained herein to the contrary, the Escrow Agent to act hereunderAgent, it is further agreed by the Company including its officers, directors, employees and Placement Agent thatagents, shall:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted under this Escrow Agreement so long as it shall have acted in good faith and without gross negligence;
(b) have no responsibility to inquire into or determine the genuineness, authenticity, or sufficiency of any securities, check, or other documents or instruments submitted to it in connection with its duties hereunder;
(c) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind;
(d) be entitled to refrain from taking any action contemplated by this Escrow Agreement in the event that it becomes aware of any disagreement between the parties hereto as to any facts or as to the happening of any contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investment or reinvestment made in accordance with such advice.any provision which may be contained herein;
(f) be entitled to compensation for its services hereunder as per Exhibit C attached hereto and for reimbursement of its out-of-pocket expenses including, but not by way of limitation, the reasonable fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties hereunder, to be paid in full by Purchaser, except that any sales loads, fees or transaction charges assessed by The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account Vanguard Group ("Vanguard Charges") shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation paid out of the Escrow Agent.Fund;
(g) The be entitled to set off and apply the Escrow Agent makes no representation as Fund against any fees and expenses to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, which the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writingis entitled hereunder and which are due and owing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days but only after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation given notice requesting payment thereof to Sellers' Representative and Purchaser and such fees and expenses remain unpaid for 60 days following the date of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt by Sellers' Representative and Purchaser of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablenotice. The Escrow Agent shall act on promptly notify Sellers' Representative and Purchaser after any such court order setoff and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or application made by the Escrow Agent in performance Agent, and Purchaser shall promptly reimburse the Escrow Fund for the amount of its duties hereunder (including reasonable feessuch setoff, expenses and disbursements except that Sellers shall promptly reimburse the Escrow Fund for the amount of its counsel).such setoff where such setoff is incurred due to Vanguard Charges;
(mh) All parties hereto irrevocably (i) submit be under no obligation to invest the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name deposited funds or the rightsincome generated thereby until it has received a U.S. Internal Revenue Service Form W-9 (or W-8, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.if applicable) from Seller;
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) 5.01 The Escrow Agent shall be entitled to rely reasonable compensation for its services hereunder and shall be reimbursed for all reasonable expenses, disbursements and advances (including reasonable attorneys' fees and expenses) incurred or made by it in performance of its duties hereunder. Such reasonable compensation, disbursement, expenses and advances shall be borne by IWI and shall be paid promptly upon request by the Escrow Agent.
5.02 The Escrow Agent may resign and be discharged from its duties hereunder at any ordertime by giving notice (a "Resignation Notice") of such resignation to IWI and Stockholders' Representative specifying a date (not less than 30 days after the giving of such notice) when such resignation shall take effect. Promptly after such Resignation Notice, judgmentIWI and Stockholders' Representative shall appoint a mutually agreeable successor Escrow Agent, certification, demand, such successor Escrow Agent to become Escrow Agent hereunder upon the resignation date specified in such notice. If IWI and Stockholders' Representative are unable to agree upon a successor Escrow Agent within 30 days after such notice, instrument or other writing delivered the Escrow Agent shall have the right to it hereunder without being required petition a court of competent jurisdiction to determine appoint a successor, and the authenticity or Escrow Agent shall continue to serve until its successor accepts the correctness of any fact stated therein or escrow and receives the propriety or validity of the service thereofEscrowed Property.
5.03 The Escrow Agent undertakes to perform only such duties as are specifically set forth herein. The Escrow Agent may act acting or refraining from acting in reliance good faith shall not be liable for any mistake of fact or error of judgment by it or for any acts or omissions by it of any kind unless caused by negligence or willful misconduct, and shall be entitled to rely, and shall be protected in doing so, upon (a) any written notice, instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice have been signed or receipt presented by the proper party or advice or make any statement or execute any document in connection with the provisions hereof has been parties duly authorized to do so.
, and (eb) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time which may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignationown choosing). If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means submitted to resolve disputes it hereunder and may shall be entitled in good faith to rely without any liability upon the contents thereof. The Escrow Agent has no responsibilities under, and shall be deemed to have no knowledge of, the provisions of the Acquisition Agreement.
(k) 5.04 IWI and the Stockholders, jointly and severally, agree to indemnify the Escrow Agent and hold it harmless against any and all liabilities incurred by it hereunder as a consequence of such indemnifying party's action, and IWI and the Stockholders, jointly and severally, further agree to indemnify the Escrow Agent and hold it harmless against any and all losses, costs, fees and expenses incurred by the Escrow Agent except, in either case for liabilities incurred by the Escrow Agent resulting from its own gross negligence or willful misconduct. The indemnification provided pursuant to this section shall survive the resignation of the Escrow Agent or the termination of this Escrow Agreement.
5.05 In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent becomes involved in good faith any litigation or dispute by reason hereof, it is in doubt as hereby authorized to what action it should take hereunder, deposit with the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order clerk of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed held by the other parties it pursuant hereto and, thereupon, shall stand fully relieved and consented to by the subscribers directing delivery discharged of the Escrowed Propertyany further duties hereunder. Also, in which the event the Escrow Agent shall disburse is threatened with litigation by reason hereof, it is hereby authorized to interplead all interested parties in any court of competent jurisdiction and to deposit with the clerk of such court the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above held by it pursuant hereto and, thereupon, shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final stand fully relieved and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction discharged of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereoffurther duties hereunder.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Acquisition Agreement (Origin Investment Group Inc)
Concerning the Escrow Agent. To induce (a) The duties and responsibilities of Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Acceptance of Escrow, the form of which is attached hereto as Exhibit A (the “Acceptance of Escrow”). With the exception of this Agreement and the Acceptance of Escrow, the Escrow Agent is not responsible for, or chargeable with knowledge of, any terms or provisions contained in any underlying agreement referred to act hereunder, it is further agreed in this Agreement or any other separate agreements and understandings between the parties except as specifically incorporated by reference or used herein. The Escrow Agent shall not be liable for the Company and Placement Agent that:accuracy of any calculations or the sufficiency of funds for any purpose.
(ab) The Escrow Agent shall not be under liable to anyone whatsoever by reason of any duty to give the Escrowed Property held error or judgment or for any act done or step taken or omitted by it hereunder in good faith or for any greater degree mistake of care than fact or law or for anything which it gives may do or refrain from doing in connection herewith unless caused by or arising out of its own similar property gross negligence or willful misconduct. Patriot and shall not the shareholders of Crossflo shall, jointly and severally, indemnify and hold the Escrow Agent harmless from any and all liabilities and expenses (including, without limitation, its attorneys’ fees and expenses of litigation) which may arise out of or result from this Escrow Agreement or any action taken or omitted to be required to invest any funds held hereunder except taken by it as directed Escrow Agent in accordance with this Escrow Agreement. Uninvested funds held hereunder shall not earn , as the same may be amended, modified or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent supplemented, except with respect to any such liability and all matters pertinent hereto. No implied duties expense as may result from the gross negligence or obligations shall be read into this Escrow Agreement against willful misconduct of the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence entitled to rely and shall be protected in acting in reliance upon any instructions or willful misconduct, and, except with respect directions furnished to claims based upon such gross negligence it in writing jointly by Patriot and the Crossflo Majority Shareholders or willful misconduct that are successfully asserted against the pursuant to any provision of this Escrow AgentAgreement and shall be entitled to treat as genuine, and as the document it purports to be, any letter, paper or other parties hereto shall jointly document furnished to it by Patriot or Crossflo Majority Shareholders and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held reasonably believed by it hereunder in good faith, in accordance with to be genuine and to have been signed and presented by the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence proper party or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delaysparties.
(d) The Escrow Agent, or any successor to it hereafter appointed, may at any time resign by giving a Notice to Patriot and the shareholders of Crossflo and shall be discharged from its duties hereunder upon the appointment of a successor Escrow Agent as hereinafter provided or upon the expiration of thirty (30) days after such Notice is given. In the event of any such resignation, a successor Escrow Agent, which shall be a bank or trust company organized under the laws of the State of California and having a combined capital and surplus of not less than $10,000,000, shall be jointly appointed by Patriot and Crossflo Majority Shareholders. Any such successor Escrow Agent shall deliver to Patriot and the shareholders of Crossflo a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of the Escrow Agent hereunder and shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine receive the authenticity or Escrow Amount held by the correctness of any fact stated therein or the propriety or validity of the service thereof. The predecessor Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith hereunder. Exhibit C to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.Merger Agreement
(e) The Escrow Agent may act pursuant consult with counsel to the advice of counsel be selected and employed by it and shall be fully protected with respect to any matter relating to action under this Escrow Agreement and shall not be liable for any action taken or omitted suffered in good faith and by the Escrow Agent in accordance with the opinion of such advicecounsel.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration receive compensation for its agreement services at its customary rates as in effect from time to act as Escrow Agent as herein describedtime. Such compensation, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, along with any other fees or expenses and related disbursements and advances incurred or made by the Escrow Agent in performance of carrying out its duties obligations hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect prior to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by lawdate, shall be valid and sufficient service thereofpaid by Patriot.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to act hereunderor described herein (including without limitation the Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it is further agreed to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the Company proper person, and Placement Agent that:shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(ab) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrowed Property held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any agreement among such loss or damage and regardless of the other parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except for its to the extent that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out in breach of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, to deal with itself (in its individual capacity) or the propriety with any one or validity more of its affiliates, whether it or such affiliate is acting as a subagent of the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may act pursuant be called for hereunder to be taken by the advice of counsel with respect to any matter relating to Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such adviceform, or (ii) passage of the applicable time period (or both, as applicable under the terms of this Agreement), as the case may be.
(f) The Escrow Agent does not have any interest in Unless and except to the Escrowed Property deposited hereunder but is serving as escrow holder only. Any extent otherwise expressly set forth herein, all deposits and payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certificationhereunder, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as pursuant to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor terms hereof (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) without limitation all payments to the Escrow Agent of the other parties' notice of termination or (B) pursuant to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by lawSection 8, shall be valid and sufficient service thereofin U.S. dollars.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Liberty Property Limited Partnership)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) 3.01 The Escrow Agent shall not be entitled to reasonable compensation for its services hereunder and shall be reimbursed for all reasonable expenses, disbursements and advances (including reasonable attorneys' fees and expenses) incurred or made by it in performance of its duties hereunder. Buyer and Sellers shall each pay one-half of all such reasonable compensation, disbursements, expenses and advances, which, until so paid, will constitute, along with any amounts due under any duty to give Section 3.04 hereof, a first lien against the Escrowed Property Fund.
3.02 The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to Sellers and Buyer specifying a date (not less than 30 days after the giving of such notice) when such resignation shall take effect. Promptly after such notice, Sellers and Buyer shall appoint a successor escrow agent, such successor escrow agent to be the Escrow Agent hereunder upon the resignation date specified in such notice. If Sellers and Buyer are unable to agree upon a successor escrow agent within 30 days after such notice, the Escrow Agent shall be entitled to either appoint its successor or, at the joint and several expense of Sellers, on the one hand, and Buyer, on the other hand, petition any court of competent jurisdiction to appoint its successor. The Escrow Agent shall continue to serve until its successor accepts the escrow and receives the Escrowed Fund. Sellers and Buyer may agree at any time to substitute a new escrow agent by giving 15 days' notice thereof to the Escrow Agent then acting. The Escrow Agent and any successor thereto appointed hereunder shall be a bank or trust company located in New York, New York which has a combined capital and surplus of at least $100,000,000.
3.03 The Escrow Agent undertakes to perform only such duties as are specifically set forth herein, and specifically with respect to Section 1.02 hereof shall have no responsibility thereunder other than to invest the Escrowed Fund held by it hereunder any greater degree of care than it gives its own similar property in the amounts and as specified in the instructions provided for therein. The Escrow Agent, acting or refraining from acting in good faith, shall not be required liable for any mistake of fact or error of judgment by it or for any acts or omissions by it of any kind unless caused by willful misconduct or gross negligence, and shall be entitled to invest rely, and shall be fully protected in doing so, upon (i) any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn written notice, instrument or accrue interest.
other document provided for herein or signature believed by it to be genuine and to have been signed or presented by the proper party or parties duly authorized to do so, and (bii) This Escrow Agreement expressly sets forth all the duties advice of counsel (which may be of the Escrow Agent with respect Agent's own choosing, but shall not be counsel to any and all matters pertinent other party hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent). The Escrow Agent shall not be bound by liable either for any lost interest on the provisions Escrowed Fund which results from the failure of Sellers to provide adequate instruction pursuant to Section 1.02 hereof or for any agreement among loss incurred in connection with the investment of the Escrowed Fund pursuant to instruction of Seller or, as provided in Section 1.02 hereof, changes in investments which are necessary to make distributions of the Escrowed Fund.
3.04 Sellers, on the one hand, and Buyer, on the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liablehand, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall agree jointly and severally to indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and hold it harmless against any and all losses, liabilities, claims, actions, damages expenses (including attorney's fees and expenses, including reasonable attorneys' fees and disbursementsclaims, or demands (collectively, "Losses") arising out of and or in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with performance of its investment or reinvestment of any cash held by it hereunder in good faith, obligations in accordance with the terms hereofprovisions of this Agreement, including without limitation any liability except for any delays (not Losses resulting from the gross negligence or willful misconduct) in the investment or reinvestment misconduct of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofAgent. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 foregoing indemnification shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty undertakes to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property perform only such duties as are expressly set forth herein and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any writing or instrument or signature believed by it in good faith to be genuine and may assumewhich it, if in good faith, believes to be genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to give notice or receipt or any writing, notice, advice or make any statement or execute any document instructions in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner, and execution, or validity of any instrument deposited in this escrow, nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of such certificates, monies, instruments, or other documents received by it as such escrow Pledgee, and for the disposition of the same in accordance with the written instruments accepted by it in the escrow.
(c) Pledgee and Pledgor hereby agree, jointly and severally, to defend and indemnify the Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits, or proceedings at law or in equity, or any other expenses, fees, or charges of any character or nature which it may incur or with which it may be threatened by reason of its acting as Escrow Agent under this Agreement, except where arising out of willful misconduct or gross negligence; and in connection therewith, to indemnify the Escrow Agent against any and all expenses, including attorneys' fees and costs of defending any action, suit, or proceeding or resisting any claim. The Escrow Agent shall be vested with a lien on all property deposited hereunder, for indemnification of attorneys' fees and court costs regarding any suit, proceeding or otherwise, or any other expenses, fees, or charges of any character or nature, which may be incurred by the Escrow Agent by reason of disputes arising between the makers of this escrow as to the correct interpretation of this Agreement and instructions given to the Escrow Agent hereunder, or otherwise, with the right of the Escrow Agent, regardless of the instructions aforesaid, to hold said property until and unless said additional expenses, fees, and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Borrower, which fees and costs are specified in the Standby Equity Distribution Agreement.
(d) If any two parties shall be in disagreement about the interpretation of this Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole discretion deposit the Pledged Materials with the Clerk of the Circuit Court of Xxxxxx County, New Jersey, and, upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent shall be indemnified by the Borrower and Pledgee for all costs, including reasonable attorneys' fees in connection with the aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities under this Agreement until a final decision or other settlement in the proceeding is received.
(e) The Escrow Agent may act pursuant to consult with counsel of its own choice (and the advice costs of such counsel with respect to any matter relating to this Escrow Agreement shall be paid by Borrower and Pledgee) and shall not be liable have full and complete authorization and protection for any action taken or omitted suffered by it hereunder in good faith and in accordance with the opinion of such advicecounsel. The Escrow Agent shall otherwise not be liable for any mistakes of fact or error of judgment, or for any actions or omissions of any kind, unless caused by its willful misconduct or gross negligence.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving upon thirty (30) days' written notice to such effect to the Company and the Placement Agentparties in this Agreement. Upon any such termination or resignationIf a successor Escrow Agent is not appointed within this thirty (30) day period, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of petition a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) to name a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further questionsuccessor.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and the Placement Agent that:
(a) 8.1 The Escrow Agent shall not be under any duty to give the Escrowed Property held by funds it receives hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestproperty.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) 8.2 The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Company and the other parties hereto Placement Agent shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, expenses arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) 8.3 The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument instrument, or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) 8.4 The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advicethe exercise of its own best judgment in carrying out its duties hereunder.
(f) 8.5 The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company Placement Agent, the Purchaser (or an affiliate of the Purchaser), and the Placement Company. The Escrow Agent or at any time may resign by giving written notice to such effect to the Company Placement Agent and the Placement AgentCompany. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property any and all property in escrow at that time to any a successor escrow agent jointly designated by the other parties hereto Placement Agent, the Purchaser (or an affiliate of the Purchaser), and the Company in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Subscription Agreement (Ride Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property Funds held by it hereunder any greater degree of care than it gives its own similar property and property. The Escrow Agent shall not be required to invest any funds held hereunder except as directed in pursuant to Section 1 and Section 3 of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto with respect to the subject matter hereof except this Escrow Agreement. The Escrow Agent's duties are ministerial in nature. Except as expressly set forth herein, Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any financial or other liability in the performance of its duties hereunder.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except misconduct in taking any actions or failing to take any actions hereunder. Except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, taxes (not including any taxes of the Escrow Agent measured by or imposed upon income, and not including any franchise or excise taxes), damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and or in connection with this Escrow AgreementAgreement including the legal costs and expenses of defending itself against any claim or liability in connection with its performance hereunder. Without limiting the foregoing, the Escrow Agent shall in no event be liable (i) in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, or as a result of any liquidation of any such investment prior to its maturity, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment investment, reinvestment or reinvestment liquidation of the Escrowed PropertyFunds, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, or any loss (iii) for an amount in excess of interest incident the value of the Escrowed Funds, valued as of the date of the deposit, but only to any such delaysthe extent of direct money damages. Without limiting the joint and several nature of the obligation of Sellers' Representatives and Buyer vis-a-vis the Escrow Agent pursuant to this Section 4(c), as between themselves, the Sellers' Representatives and Buyer agree that they shall each share 50% of all losses, liabilities, claims, actions, taxes, damages and expenses for which the Escrow Agent is entitled to indemnification hereunder, which, in case of Buyer, shall be satisfied first from the Available Cash Amount. The terms of this Section 4(c) shall survive termination of this Escrow Agreement and the resignation or removal of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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.
(e) The Escrow Agent may act pursuant to the advice of counsel with reasonably acceptable to both Sellers' Representative and Buyer (Patterson, Belknap, Webb and Tyler, LLP being acceptable to both Sellers' Representative axx Xuyer) xxxx respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the any Escrowed Property Funds deposited hereunder but is serving as escrow holder onlyagent only and having only possession thereof. Any payments of income from the this Escrow Account Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will Sellers' Representatives shall provide to the Escrow Agent concurrently with execution of this Escrow Agreement, appropriate W-9 or other certification forms for tax I.D., identification number certification, or non-resident W-8 or other nonresident alien certifications, with respect to each of the Sellers. This paragraph (f) and paragraph (c) of this Section 7 Buyer shall survive notwithstanding any termination provide a duly completed W-9 to the Escrow Agent concurrently with execution of this Escrow Agreement or Agreement. As between Buyer and Sellers, Buyer agrees to pay the resignation of the Escrow Agenttaxes applicable to such income.
(g) The Escrow Agent makes no representation and shall not be responsible as to the validity, value, genuineness or the collectibility collectability of any security or other document documents or instrument held by or delivered to it.
(h) Each of the monthly periodic statements identifying transactions hereunder to be provided by the Escrow Agent shall be deemed to be correct and final upon receipt thereof by the Buyer and the Sellers' Representatives unless the Buyer or the Sellers' Representatives notifies the Escrow Agent in writing to the contrary within thirty (30) business days of the date of such statement.
(i) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(ij) The Escrow Agent (Sellers' Representatives and any successor escrow agent) at any time Buyer may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, jointly remove the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of terminate this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made upon ten (10) days prior written notice signed by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.both
Appears in 1 contract
Samples: Escrow Agreement (Ionics Inc)
Concerning the Escrow Agent. To induce 4.1. Duties and Responsibilities of the Escrow Agent Agent. The Escrow Agent's duties and responsibilities shall be subject to act hereunder, it is further agreed by the Company following terms and Placement Agent thatconditions:
(a) The Purchaser and the Company acknowledge and agree that the Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and (i) shall not be required to invest inquire into whether the Purchaser, the Company or any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder other party is entitled to receipt of any Document or all or any portion of the Escrowed Payment; (ii) shall not earn be called upon to construe or accrue interest.
review any Document or any other document, instrument or agreement entered into in connection therewith; (biii) This Escrow Agreement expressly sets forth all shall be obligated only for the performance of such duties of as are specifically assumed by the Escrow Agent with respect pursuant to any this Agreement; (iv) may rely on and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faithfaith to be genuine and to have been signed or presented by the proper person or party, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent ; (v) may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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; (vi) shall not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent's choosing), the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Purchaser and the Company hereby, jointly and severally, indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives from and against any and all actions taken or omitted to be taken by Escrow Agent or any of them hereunder and any and all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the Escrow Agent arising in any manner whatsoever out of the transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the fees of outside counsel and other costs and expenses of defending itself against any claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the transactions contemplated by this Agreement and/or any transaction related in any way hereto, except for such claims, losses, liabilities, costs, damages and expenses incurred by reason of the Escrow Agent's gross negligence or willful misconduct. The Escrow Agent shall owe a duty only to the Purchaser and the Company under this Agreement and to no other person.
(c) The Purchaser and the Company shall jointly and severally reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including counsel fees (which counsel may be Loeb & Loeb LLP or such other counsel of the Escrow Agent's choosing) incurred in connection with the performance of its duties and responsibilities hereunder, which shall not (subject to Section 4.1(b)) exceed $3,000.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) business days prior written notice of resignation to the Purchaser and the Company. Prior to the effective date of resignation as specified in such notice, the Purchaser and Company will issue to the Escrow Agent a joint instruction authorizing delivery of the Documents and the Escrowed Payment to a substitute Escrow Agent selected by the Purchaser and the Company. If no successor Escrow Agent is named by the Purchaser and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and deposit the Documents and the Escrowed Payment with the clerk of any such court, and/or otherwise commence an interpleader or similar action for a determination of where to deposit the same.
(e) The Escrow Agent may act pursuant to does not have and will not have any interest in the advice of counsel with respect to any matter relating to this Documents and the Escrowed Payment, but is serving only as escrow agent, having only possession thereof.
(f) The Escrow Agreement and Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be Loeb & Loeb, LLP or such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation other counsel of the Escrow Agent's choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except to the extent any such liability arose from its own willful misconduct or gross negligence.
(g) The This Agreement sets forth exclusively the duties of the Escrow Agent makes with respect to any and all matters pertinent thereto and no representation as to the validity, value, genuineness implied duties or the collectibility of any security or other document or instrument held by or delivered to itobligations shall be read into this Agreement.
(h) The Escrow Agent shall not be called upon permitted to advise act as counsel for the Purchaser or the Company, as the case may be, in any party dispute as to the wisdom disposition of selling the Documents and the Escrowed Payment, in any other dispute between the Purchaser and the Company, whether or retaining or taking or refraining from any action with respect not the Escrow Agent is then holding the Documents and/or the Escrowed Payment and continues to any securities or other property deposited act as the Escrow Agent hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by provisions of this Section 4.1 shall survive the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on or the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent the Subscribers that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as may be otherwise directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except liable for its own gross negligence any action taken or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct omitted by it in good faith unless a court of competent jurisdiction determines that are successfully asserted against the Escrow Agent, and 's willful misconduct was the primary cause of any loss to the other parties hereto shall jointly and severally indemnify and hold harmless the to this Agreement. The Escrow Agent (may consult with counsel of its own choice and shall have full and complete authorization and protection for any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment action taken or reinvestment of any cash held omitted by it hereunder in good faith, faith and in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment opinion of the Escrowed Property, or any loss of interest incident to any such delayscounsel.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any and document in connection with the provisions hereof has been duly authorized to do so.
(e) The Company and the Subscribers agree to indemnify the Escrow Agent may act pursuant for, and to hold it harmless against, any loss, liability or expense arising out of or in connection with this Agreement and carrying out its duties hereunder, including the costs and expenses of defending itself against any claim of liability, except in those cases where the Escrow Agent has been guilty of gross negligence or willful misconduct. Anything in this Agreement to the advice of counsel with respect to any matter relating to this contrary notwithstanding, in no event shall the Escrow Agreement and shall not Agent be liable for special, indirect or consequential loss or damage of any action taken kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or omitted in good faith damage and in accordance with such adviceregardless of the form of action. This paragraph (e) and paragraph (c) of this Section 6 shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments Payments of income income, if any, from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document documents or instrument instruments held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon Subscribers, and, upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto Company and the Subscribers in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upondesignated, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 thirty (30) days after the date of delivery: (A) to the Escrow Agent of the other parties' Company’s notice of termination or (B) to the other parties hereto Company and the Subscribers of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for or written instructions given by the parties hereto.
(l) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the other parties hereto or by a final order or judgment of a court of competent jurisdiction. Additionally, in the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above the preceding sentence shall be have been accompanied by a legal opinion by of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(lm) As consideration for its agreement to act as Escrow Agent as herein described, the The Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to or reimburse the Escrow Agent upon request for all reasonable expenses, disbursements and advances advances, including reasonable attorney's fees, incurred or made by it in connection with the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)this Agreement.
(mn) All The parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal Swiss court sitting in New York City Lausanne, Switzerland in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal Swiss court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofhereof.
(no) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports The duties and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties responsibilities of the Escrow Agent hereunder shall be issued determined solely by the express provisions of this Agreement, and no other parties hereto or on such parties' behalf unless the Escrow Agent further duties or responsibilities shall first have given its specific written consent theretobe implied. The Escrow Agent hereby consents shall not have any liability under, nor duty to inquire into, the terms and provisions of any agreement or instructions, other than as outlined in this Agreement.
(p) The parties acknowledge that the Escrow Agent is acting as counsel to the use of Company in connection with the offering referred to herein and shall have the right to continue to act in such capacity notwithstanding its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectusappointment as Escrow Agent hereunder.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property Escrow Shares or other property or funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement agreement, including, but not limited to, the Stockholder Agreement, among the other parties hereto except this Agreement, even if the Escrow AgreementAgent has knowledge of the existence of such agreement or the terms or provisions thereof, Escrow Agent"s only duty, liability and responsibility under this Agreement being to receive, hold and deliver the Escrow Shares as provided herein.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, . The Parent and the other parties hereto shall jointly and severally Stockholders agree to indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, costs, expenses, damages, liabilities, claims, actions, damages suits, and expensesjudgments whatsoever (including, including but not limited to, consequences arising in whole or in part from the negligence of the Escrow Agent or the alleged negligence of the Escrow Agent and including, among other things, court costs and reasonable attorneys' attorney fees and disbursementsparalegal fees incurred in connection therewith) which the Escrow Agent may incur (or which may be claimed or asserted against the Escrow Agent by any person or entity whatsoever), together with all reasonable expenses resulting from the compromise or defense of any such asserted claims or liabilities, whatsoever arising out of and of, from, as a result of, or in any manner in connection with the execution, delivery, consummation or performance by the Escrow Agent, of this Agreement; provided, however, that -------- ------- neither the Parent nor the Stockholders shall be required to indemnify the Escrow AgreementAgent for any claims damages, losses, liabilities, costs or expenses to the extent caused by the willful misconduct or gross negligence of the Escrow Agent, as determined in a final nonappealable order by a court of competent jurisdiction. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash funds held by it hereunder in good faith, in accordance with the terms hereof, including including, without limitation limitation, any liability for any delays (not resulting from its own gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Propertysuch funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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.
(e) The Escrow Agent may execute any of the powers granted under this Agreement and perform any of the duties by or through attorneys, agents, employees, accountants or other experts but will be answerable for the conduct of these parties in accordance with the standards provided in this Agreement and shall be entitled to act pursuant to upon the opinion or advice of counsel its counsel, accountant and other expert concerning all matters under this Agreement, and may in all cases pay compensation to all attorneys, agents, employees, accountants and other experts as may reasonably be employed in connection with respect to any matter relating to this Agreement. The Escrow Agreement Agent may act upon an opinion of its counsel, accountant and other expert and shall not be liable responsible for any loss or damage resulting from any action or nonaction by it taken or omitted to be taken in good faith and in accordance with reliance upon such adviceopinion of counsel, accountant or other expert.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited Escrow Shares or other funds or property held by it hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) only and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agenthaving only possession thereof.
(g) The Escrow Agent makes no representation as to the validity, value, value or genuineness or the collectibility of any security amounts, documents or other document or instrument instruments held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or in taking or refraining from taking any action with respect to any securities shares or other property amounts deposited hereunder.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, delivering the Escrow Agent shall deliver the Escrowed Property Shares and other funds and property held by it hereunder to any successor escrow agent Escrow Agent jointly designated by the other parties hereto Stockholders' Agent and the Parent in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of day which is thirty (i30) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Escrow Shares until receipt of a designation of successor escrow agent Escrow Agent pursuant to a Joint Instruction or a joint written disposition instruction by the other parties hereto or any enforceable final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among the Parent, the Stockholders, and/or any person, firm, or between the other parties hereto and/or the subscribers of the Shares entity resulting in a controversy with respect to this Agreement or in adverse claims or demands being made in connection with the Escrowed PropertyEscrow Shares or other funds or property held by it hereunder, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Escrow Shares or other funds or property held by it hereunder until the Escrow Agent shall have received (i) a Joint Instruction directing delivery of the Escrow Shares or other funds or property held by it hereunder; or (ii) a final and non-appealable order of a court of competent jurisdiction directing the delivery of the Escrowed Property Escrow Shares or (ii) a written agreement executed other funds or property held by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Propertyit hereunder. Alternatively, in which the event of such a disagreement among the Parent, the Stockholders and/or any other person, firm or entity, the Escrow Agent shall disburse have the Escrowed Property right (but not the obligation) to institute a xxxx of interpleader in accordance with such order or agreement. Any any court order referred of competent jurisdiction to in determine the rights of the parties hereto (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to right of the Escrow Agent to the effect that said court order is final and non-appealable. The institute such xxxx of interpleader shall not, however, be deemed to modify the manner in which the Escrow Agent shall act on is entitled to make disbursements of the Escrow Amount as hereinabove set forth other than to tender the Escrow Amount into the registry of such court order court). Should a xxxx of interpleader be instituted, then as between themselves and legal opinion without further question.
(l) As consideration for its agreement to act as the Escrow Agent as herein describedAgent, the Company agrees Parent and the Stockholders, jointly and severally, hereby bind and obligate themselves, their successors, heirs, executors and assigns to pay the Escrow Agent its reasonable attorneys fees and costs and any and all other disbursements, expenses, losses, costs and damages of the fee Escrow Agent in connection with or resulting from such litigation.
(k) The Parent agrees that prior to or contemporaneous with the Escrow Agent"s execution of this Agreement and without the need for a submission by the Escrow Agent of an invoice therefore, the Parent will pay the Escrow Agent its first Annual Escrow Agent Administration Fee, as set forth on in Exhibit F hereto (made a part of ------- B hereto, which Exhibit B is incorporated herein by reference as though fully - --------- set forth herein. The Parent and the Stockholders each further agree that the Parent will thereafter pay the Escrow Agent its customary fees payable for acting as Escrow Agent under this Escrow Agreement Agreement, as if herein set forth). In additionforth in Exhibit B hereto, --------- and that the Company agrees to Parent will reimburse the Escrow Agent for all reasonable expenses, disbursements its ordinary and advances necessary expenses incurred or made by the Escrow Agent in performance carrying out the terms of its duties hereunder (including reasonable feesthis Agreement. Except as otherwise provided for the initial payments in the first sentence of this subparagraph, such fees and reimbursements of expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, paid directly to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by promptly upon receipt of periodic invoices therefor. In the other parties hereto or on such parties' behalf unless event the Escrow Agent shall first have given is required by the terms of this Agreement or otherwise deems it necessary or advisable in fulfillment of its specific written consent thereto. The responsibilities hereunder to take actions beyond those which are routinely performed by escrow agents under similar escrow agreements, the Parent will pay the Escrow Agent hereby consents its reasonable fees for its services in such regard and will reimburse the Escrow Agent for its reasonable expenses incurred by the Escrow Agent in connection therewith. Such fees and reimbursements of expenses shall be paid directly to the use Escrow Agent promptly upon receipt of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectusinvoices therefor.
Appears in 1 contract
Samples: Escrow Agreement (Price Thomas A)
Concerning the Escrow Agent. To induce (a) Each party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to act hereunderor described herein (including without limitation the Reorganization Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it is further agreed to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting (or, if so requested, refraining from acting) upon and in accordance with any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the Company proper person, and Placement Agent that:shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(ab) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrowed Property held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent's gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any agreement among such loss or damage and regardless of the other parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository or securities intermediary employed by the Escrow Agent than any such book-entry depository or securities intermediary has to the Escrow Agent, except for its to the extent that such action or omission of any book-entry depository or securities intermediary was caused by the Escrow Agent's own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out in breach of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine resign and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving at least 30 days' prior written notice of such resignation to such effect to the Company Parent and the Placement Agent. Upon any Stockholder specifying a date upon which such termination or resignationresignation shall take effect; PROVIDED, HOWEVER, that the Escrow Agent shall deliver continue to serve until its successor accepts the Escrowed Property to any Escrow Fund. Upon receipt of such notice, a successor escrow agent jointly designated shall be appointed by Parent and the Stockholder, such successor escrow agent to become the Escrow Agent hereunder on the resignation date specified in such notice. If a written instrument of acceptance by a successor escrow agent shall not have been received by the other parties hereto in writingEscrow Agent within 40 days after the giving of such notice of resignation, or to the resigning Escrow Agent may at the expense of Parent petition any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) for the appointment of a successor (including escrow agent. Parent and the Stockholder acting jointly, may at any time substitute a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) new escrow agent by giving 10 days' prior written notice thereof to the Escrow Agent then acting and by Parent paying all fees and expenses of the other parties' notice of termination or (B) to the other parties hereto of the such Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Escrow Agreement (Dreamlife Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent Agents that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liableliable under this Escrow Agreement, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' ’ fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder by the Company or the Placement Agents without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have have, for tax reporting purposes, any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. The parties hereto agree that, for tax reporting purposes, all interest or other income earned from the investment of the Escrowed Property or any portion thereof in any tax year (i) to the extent such interest or other income is distributed by the Escrow Agent to any person or entity pursuant to the terms of this Escrow Agreement during such tax year, shall be reported as allocated to such person or entity, and (ii) otherwise shall be reported as allocated to the subscribers, in proportion to their respective Subscription Payment as set forth on Exhibit A hereto.
(g) Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. .
(h) This paragraph (fh) and paragraph (c) of this Section 7 6 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(gi) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(hj) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(ik) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of written notice of termination signed by both the Company and the Placement Agent Agents or at any time may resign mayresign by giving written notice to such effect to the Company and the Placement AgentAgents not less than 60 days’ prior to the date when such resignation shall take effect. Upon the effectiveness of any such termination or resignation, the Escrow Agent shall promptly deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement except to the extent resulting from its gross negligence or willful misconduct. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is is: (A) 30 days after the date of delivery: (A) delivery to the Escrow Agent of the other parties' ’ notice of termination or (B) 60 days after the date of delivery to the other parties hereto of the Escrow Agent's ’s written notice of resignation. If at that the time of any termination or resignation the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be Agent may apply to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdictionjurisdiction for appointment of a successor Escrow Agent and shall, until such time as a successor Escrow Agent is appointed, maintain the Escrowed Property pursuant to the terms and conditions of this Escrow Agreement.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kl) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to refrain from taking any action and retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers affected subscribers, if any, directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(lm) As consideration for its agreement to act as the performance by the Escrow Agent as of its duties herein described, the Company agrees to pay the Escrow Agent fees determined in accordance with the fee terms set forth on Exhibit F E hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expensesexpenses of third parties, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, fees and expenses and disbursements of its counseloutside counsel not to exceed $10,000).
(mn) All The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent Each party agrees to and grant any such court jurisdiction over the persons of such parties and over the subject matter accept service of any such dispute and agree that delivery or mailing of process summons, complaint or other papers in connection with any such action or proceeding initial pleading made in the manner provided hereinabovefor the giving of notices in Section 5 hereof, provided that nothing in this Section 6(n) shall affect the right of any party to serve such summons, complaint or other initial pleading in such any other manner as may be permitted by law, shall be valid and sufficient service thereof.
(no) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow he scrow Agent's ’s name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' ’ behalf unless the Escrow Agent shall first have given its specific written consent theretothereto (which consent shall not be unreasonably withheld, conditioned or delayed). The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement (including all exhibits thereto) and the Placement Agency Agreement and in the Prospectusfilings made by the Company under the Securities Exchange Act of 1934, as amended including the filing of this Agreement as an exhibit thereto.
(p) Anything in is Escrow Agreement to the contrary, notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Escrow Agent has been advised of the likelihood of such loss or damage or regardless of the form of action.
(q) In the event funds transfer instructions are given (other than in writing at the time of execution of this Escrow Agreement), whether in writing, by telecopy or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule II hereto, and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. The Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the Placement Agents or the Company to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even where its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary’s bank or an intermediary bank designated. The parties to this Escrow Agreement acknowledge that these security procedures are commercially reasonable.
Appears in 1 contract
Concerning the Escrow Agent. To induce (a) The fee of the Escrow Agent to act hereunderhereunder is $750, it is further agreed which fee shall be nonrefundable and paid in advance by the Company Issuers. The Issuers also agree to pay on demand the reasonable costs and Placement Agent that:expenses of the Escrow Agent, including the reasonable fees and expenses of outside counsel selected by the Escrow Agent, other than the costs and expenses reimbursed pursuant to Section 4, incurred in connection with its duties hereunder.
(ab) The Escrow Agent shall not be under any duty to give exercise the same degree of care toward the Escrowed Property held by as it hereunder any greater degree of care than it gives exercises toward its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties higher standard of care under this Agreement, nor be deemed to owe any fiduciary duty to the Issuers or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreementparty.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely may act upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assumeto have been signed or presented by the proper person, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable to any party hereto in connection with the performance of its duties hereunder, except for its own negligence, willful misconduct or bad faith. The duties of the Escrow Agent shall be determined only with reference to this Agreement and applicable laws and the Escrow Agent is not charged with any knowledge of, or any duties or responsibilities in connection with, any other document or agreement. The Escrow Agent may consult with counsel of its choice and shall be protected in any action taken or omitted in good faith in reliance on the advice or opinion of such counsel.
(d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder either directly or by or through its agents or attorneys and shall not be liable for the misconduct or negligence of any such agent or attorney appointed with due care by it hereunder.
(e) Nothing in accordance with such advicethis Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as agent or otherwise in any jurisdiction other than the State of New York.
(f) The Escrow Agent does shall not have any interest in be responsible for and shall not be under a duty to examine into or pass upon the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D.validity, number certificationbinding effect, execution or non-resident alien certifications. This paragraph (f) and paragraph (c) sufficiency of this Section 7 shall survive notwithstanding Agreement, any termination agreement amendatory or supplemental hereto or of this Escrow Agreement or the resignation of the Escrow Agentany certificates delivered to it hereunder.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining retaining, or taking or refraining from taking any action with respect to to, any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) shall have the right at any time may be discharged from its duties and obligations to resign hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect of its resignation to the Company and Issuers at the Placement Agentaddress set forth herein or at such other address as the Issuers shall provide, at least 30 days prior to the date specified for such resignation to take effect. Upon the effective date of such resignation, all Escrowed Property then held by the Escrow Agent hereunder shall be delivered by it to a successor escrow agent. If no successor escrow agent is appointed within 30 days of such effective date, the Escrow Agent may apply at the expense of the Issuers to a court of competent jurisdiction for such appointment.
(j) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by Escrow Agent hereunder, Escrow Agent may, in its sole discretion, refrain from taking any action other than retain possession of the Escrowed Property, unless Escrow Agent receives written instructions, signed by the Issuers, which eliminates such termination ambiguity or resignationuncertainty. If the Escrow Agent should at any time be confronted with inconsistent claims or demands to the Escrowed Property, the Escrow Agent shall deliver have the Escrowed Property right, but not the duty, to any successor escrow agent jointly designated by interplead the other parties hereto in writing, or to any court of competent jurisdiction if no and request that such successor escrow agent is agreed upon, whereupon court determine the respective rights of the parties with respect to the Escrowed Property. In the event the Escrow Agent no longer holds any Escrowed Property, it shall be discharged of and released from any and all further obligations arising in connection with this Escrow Agreement. obligation or liability as a consequence of any such claims or demands.
(k) The termination or resignation of the Escrow Agent shall not be required to use its own funds in the performance of any of its obligations or duties, or in the exercise of any rights or powers, and shall not be required to take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agentany action which, in the Escrow Agent's sole responsibility after that judgment, could involve it in expense or liability unless furnished with security and indemnity which the Escrow Agent deems, in its sole discretion, to be satisfactory.
(l) If at any time shall be to keep 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 Escrowed Property safe until receipt (including but not limited to orders of a designation attachment or garnishment or other forms of successor escrow agent levies or a joint written disposition instruction injunctions or stays relating to the transfer of Escrowed Property), upon prior notice to the Issuers (unless such notice is prohibited by applicable law) Escrow Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Escrow Agent shall not be liable to any of the other parties hereto or to any enforceable order other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(m) Subject to Section 7(c) above, the Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).
(n) In the event of any dispute between or conflicting claims by or among the Issuers and/or any other person or entity with respect to any Escrowed Property, Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all such claims, demands or instructions with respect to such, and Escrow Agent shall not be or become liable in any way to the Issuers for failure or refusal to comply with such conflicting claims, demands or instructions. Escrow Agent shall be entitled to refuse to act until, in its sole discretion, such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties and evidenced in a writing satisfactory to Escrow Agent.
(jo) The Escrow Agent shall have not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence of willful misconduct on its part. In no responsibility event shall Escrow Agent be liable (i) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document from the Issuers or the Initial Purchasers or any entity acting on behalf of any Issuer, (ii) for any consequential, punitive or special damages, (iii) for the contents acts or omissions of any writing of any third party contemplated herein as a means its nominees, correspondents, designees, subagents or subcustodians, in each case, to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that extent such person was selected by the Escrow Agent with due care, or (iv) for an amount in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery excess of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery value of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act valued as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use date of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectusdeposit.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under liable for any duty to give the Escrowed Property held actions taken or omitted by it, or any action suffered by it hereunder any greater degree to be taken or omitted by it, in good faith and in the exercise of care than it gives its own similar property good faith judgment, and may rely conclusively and shall not be required to invest protected in acting upon any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn order, notice demand, certificate, opinion or accrue interest.
advice of counsel (b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound including counsel chosen by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the fees for any such counsel being the obligation of the Company to pay), statement, instrument, report or other paper or document (not only as to its due execution and the other parties hereto shall jointly validity and severally indemnify effectiveness of its provision, but also as to the truth and hold harmless acceptability of any information therein contained) which is believed by the Escrow Agent (to be genuine and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreementto be signed or presented by the proper person or person. Without limiting the foregoing, the Escrow Agent shall be fully protected and shall incur no liability whatsoever in no event relying upon signed representations of the Company delivered pursuant to the provisions hereof. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto. The Escrow Agent shall not be responsible for the sufficiency or accuracy, the form of, or the execution validity, value or genuineness of any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable in any respect on account of the identity, authority or rights of the person executing or delivering or purporting to execute or deliver any document or property paid or delivered by the Escrow Agent under the provisions hereof. The Escrow Agent shall not be liable for any loss which may be incurred by reason of any investment of any monies or properties which it holds hereunder. The Escrow Agent shall have the right to assume, in the absence of written notice to the contrary from the proper person or persons, that a fact or an event by reason of which an action would or might be taken by the Escrow Agent does not exist or has not occurred, without incurring liability for any action taken or omitted, in good faith and in the exercise of its own good faith judgment, in reliance upon such assumption. The Escrow Agent shall be indemnified and held harmless by the Company from and against any expenses, including counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with its investment any action, suit or reinvestment other proceeding involving any claim, or in connection with any claim or demand, which in any way directly or indirectly arises out of any cash or relates to this Agreement, the services of the Escrow Agent hereunder, the monies or other property held by it hereunder or any such expense or loss. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if a claim in good faithrespect thereof shall be made against the other parties hereto, notify such parties thereof in writing; but the failure by the Escrow Agent to give such notice shall not relieve any party from any liability which such party may have to the Escrow Agent hereunder. Upon the receipt of such notice, the Escrow Agent, in accordance its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Account or it may deposit the Escrow Account with the terms hereofclerk of any appropriate court or it may retain the Escrow Account pending receipt of a final, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment non-appealable order of a court having jurisdiction over all of the Escrowed Property, or any loss of interest incident parties hereto directing to any such delays.
(d) whom and under what circumstances the Escrow Account is to be disbursed and delivered. The Escrow Agent shall be entitled to rely upon any order$1,000, judgmentplus its counsel fees incurred relating to the execution and delivery hereof of $500 as compensation from the Company for all services rendered by it hereunder. In addition, certificationto the extent necessary to retain counsel after the execution and delivery hereof to advise it of its duties and responsibilities hereunder, demandthe Company shall reimburse the Escrow Agent for the fees and expenses of such counsel. Such additional fees and expenses shall not be paid out of the Offering Proceeds, noticebut shall be payable directly by the Company. From time to time on and after the date hereof, instrument the Company shall deliver or other writing cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request (it hereunder without being required understood that the Escrow Agent shall have no obligation to determine make such request) to carry out more effectively the authenticity provisions and purposes of this Agreement, to evidence compliance herewith or the correctness of any fact stated therein or the propriety or validity of the service thereofto assure itself that it is protected in acting hereunder. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) resign at any time may and be discharged from its duties and obligations as Escrow Agent hereunder by the delivery to it of notice of termination signed by both its giving the Company and the Placement Agent or at any time may resign by giving least thirty (30) days' prior written notice to such effect to the Company and the Placement Agentthereof. Upon any such termination or As soon as practicable after its resignation, the Escrow Agent shall deliver the Escrowed Property turn over to any a successor escrow agent jointly designated appointed by the other parties hereto in writingCompany, or to any court all monies and property held hereunder upon presentation of competent jurisdiction if the document appointing the new escrow agent and its acceptance thereof. If no such successor new escrow agent is agreed uponso appointed in the sixty (60) day period following the giving of such notice of resignation, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of may deposit the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a Account with any court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignationit deems appropriate. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein resign and be discharged form its duties as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent hereunder if so requested in good faith is in doubt writing at anytime by the Company, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided above. Notwithstanding anything herein to what action it should take hereunderthe contrary, the Escrow Agent shall not be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration relieved from liability thereunder for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred own gross negligence or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)own willful misconduct.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Escrow Agreement (Buyenergy Corp)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestproperty.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among between the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, AMDL and the other parties hereto Sellers shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including including, without limitation, reasonable attorneys' fees and disbursements, arising out of and or in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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 shall be fully protected in any action taken hereunder in good faith and shall not be responsible for any failure or inability of the Parties to honor any of the provisions of this Agreement. The Escrow Agent shall be under no liability to the other parties to any document (except this Agreement) or to anyone else by reason of any failure on the part of any such party to perform such party's obligations under such agreement.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property property deposited hereunder but is serving as escrow holder onlyonly and having only possession thereof. Any payments of income from the Escrow Account AMDL shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide pay or reimburse the Escrow Agent with appropriate W-9 forms upon request for tax I.D.any and all expenses, number certificationif any, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of incurred by the Escrow AgentAgent in connection with this Agreement and transfer taxes or other taxes relating to the Account incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such expenses and taxes.
(g) The Escrow Agent makes no representation as to the validity, value, or genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) may at any time may be discharged from its duties and obligations hereunder resign as such by delivering the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property Account to any successor escrow agent jointly Escrow Agent designated by a majority of the other parties hereto Sellers in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's its written notice of resignationresignation to AMDL. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe escrowed property until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by a majority of the other parties hereto Sellers or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(ki) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Propertyescrowed property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property escrowed property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property escrowed property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers dispute directing delivery of the Escrowed Propertyescrowed property, in which event the Escrow Agent shall disburse the Escrowed Property escrowed property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order opinion is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Warrant and Option Exercise Stock Purchase Agreement (Amdl Inc)
Concerning the Escrow Agent. To induce (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to act hereunderor described herein (including without limitation the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it is further agreed to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the Company proper person, and Placement Agent that:shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(ab) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrowed Property held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any agreement among such loss or damage and regardless of the other parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except for its to the extent that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out in breach of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, to deal with itself (in its individual capacity) or the propriety with any one or validity more of its affiliates, whether it or such affiliate is acting as a subagent of the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may act pursuant be called for hereunder to be taken by the advice of counsel with respect to any matter relating to Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such adviceform, or (ii) passage of the applicable time period (or both, as applicable under the terms of this Agreement), as the case may be.
(f) The Escrow Agent does not have any interest in Unless and except to the Escrowed Property deposited hereunder but is serving as escrow holder only. Any extent otherwise expressly set forth herein, all deposits and payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certificationhereunder, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as pursuant to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor terms hereof (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) without limitation all payments to the Escrow Agent of the other parties' notice of termination or (B) pursuant to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by lawSection 8), shall be valid and sufficient service thereofin U.S. dollars.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce (a) The Vendor agrees to pay or reimburse the Escrow Agent to act upon request for all expenses, disbursement and advances incurred or made by it in connection with carrying out their duties hereunder, it is further agreed by the Company including, without limitation, trading commissions and Placement Agent that:fees and reasonable legal fees.
(ab) The Escrow Agent shall not be under any duty prepare and deliver to give the Escrowed Property held by it hereunder any greater degree Purchaser and the Vendor within ten Business Days after the end of care than it gives its own similar property and shall not be required each calendar month prior to invest any funds held hereunder except as directed in termination of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth a written account describing all the duties of the Escrow Agent transactions with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow AgreementFund during such calendar month.
(c) The Vendor and the Purchaser agree jointly and severally to indemnify the Escrow Agent shall not be liablefor, except for its own and to hold it harmless against any loss, liability or expense incurred without gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against bad faith on the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless part of the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and or in connection with them entering into this Escrow AgreementAgreement and carrying out their duties hereunder, including the costs and expenses of defending itself against any claim of liability. Without limiting Notwithstanding the foregoing, as between the Vendor and the Purchaser, any indemnity to be paid to the Escrow Agent pursuant to the preceding sentence shall in no event be liable in connection with its investment or reinvestment of any cash held borne by it hereunder in good faiththe Vendor and Purchaser jointly and severally, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to provided that any such delaysindemnity to be paid in respect of expenses, disbursements or advances referred to in Clause 8(a) hereof shall be borne by the Vendor.
(d) The duties and responsibilities of the Escrow Agent hereunder shall be entitled to rely upon any orderdetermined solely by the express provisions of this Escrow Agreement, judgment, certification, demand, notice, instrument and no further duties or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to responsibilities shall be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do soimplied.
(e) The Escrow Agent may act pursuant upon any instrument or other writing provided by a duly authorised officer of any of the Vendor and the Purchaser as named in the Schedule hereto believed by it in good faith to be genuine, and to be signed or presented by the advice of counsel with respect to any matter relating to this Escrow Agreement proper person as named in the Schedule hereto, and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action performance by it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit pursuant to the jurisdiction provisions of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action except for its own wilful misconduct or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofgross negligence.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Krug International Corp)
Concerning the Escrow Agent. To induce Notwithstanding any provision contained herein to the contrary, the Escrow Agent to act hereunderAgent, it is further agreed by the Company including its officers, directors, employees and Placement Agent thatagents, shall:
(a) The Escrow Agent shall not be liable for any action taken or omitted under any duty to give the Escrowed Property held by this Agreement so long as it hereunder any greater degree of care than it gives its own similar property shall have acted in good faith and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.without gross negligence;
(b) This Escrow Agreement expressly sets forth all have no responsibility to inquire into or determine the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties genuineness, authenticity, or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions sufficiency of any agreement among the securities, checks, or other parties hereto except this Escrow Agreement.documents or instruments submitted to it in connection with its duties hereunder;
(c) The be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto, and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind;
(d) be entitled to refrain from taking any action contemplated by this Agreement in the event that it becomes aware of any disagreement between the parties hereto as to any facts or as to the happening of any contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investments or reinvestment made in accordance with any provision which may be contained herein;
(f) be entitled to compensation for its services hereunder as per Exhibit B attached hereto, which is made a part hereof, and for reimbursement of its out-of-pocket expenses including, but not by way of limitation, the fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties hereunder, all to be paid equally by the Company and Purchaser, and the Escrow Agent shall not be liablehave, except for its own gross negligence and is hereby granted, a prior lien upon any property, cash, or willful misconductassets of the Escrow Account, and, except with respect to claims based upon such gross negligence its unpaid fees, non-reimbursed expenses and unsatisfied indemnification rights, superior to the interests of any other persons or willful misconduct that are successfully asserted against entities;
(g) be entitled and is hereby granted the right to set off and deduct any unpaid fees, non-reimbursed expenses or unsatisfied indemnification rights from amounts on deposit in the Escrow AgentAccount;
(h) be under no obligation to invest the deposited funds or the income generated thereby until it has received a Form W-9 or W-8, as applicable, from the Company and Purchaser, regardless of whether such party is exempt from reporting or withholding requirements under the Internal Revenue Code of 1986, as amended;
(i) be, and hereby is, severally but not jointly indemnified and saved harmless by the other parties hereto shall jointly Company and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) Purchaser from and against any and all losses, liabilities, claims, actionsproceedings, damages suits, demands, penalties, costs and expenses, including reasonable attorneys' without limitation fees and disbursementsexpenses of outside and internal counsel and experts and their staffs and all expenses of document location, arising out duplication and shipment and of preparation to defend any of the foregoing (“Losses”), which may be incurred by it as a result of its execution, delivery or performance of this Agreement, unless such Losses shall have been finally adjudicated to have been primarily caused by the bad faith or gross negligence of the Escrow Agent, and the provisions of this section shall survive the resignation or removal of the Escrow Agent and the termination of this Agreement;
(j) in connection the event that (i) any dispute shall arise between the parties with respect to the disposition or disbursement of any of the assets held hereunder or (ii) the Escrow Agent shall be uncertain as to how to proceed in a situation not explicitly addressed by the terms of this Escrow Agreement. Without limiting Agreement whether because of conflicting demands by the foregoingother parties hereto or otherwise, the Escrow Agent shall in no event be liable permitted to interplead all of the assets held hereunder into a court of competent jurisdiction, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets. The parties hereto other than the Escrow Agent further agree to pursue any redress or recourse in connection with its investment or reinvestment such a dispute, without making the Escrow Agent a party to same;
(k) have only those duties as are specifically provided herein, which shall be deemed purely ministerial in nature, and shall under no circumstance be deemed a fiduciary for any of the parties to this Agreement. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any cash held by it hereunder in good faithother agreement, instrument or document between the other parties hereto, in accordance with the terms hereofconnection herewith, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment Purchase Agreement. This Agreement sets forth all matters pertinent to the escrow contemplated hereunder, and no additional obligations of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon inferred from the terms of this Agreement or any orderother Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, judgmentDIRECTLY OR INDIRECTLY, certificationFOR ANY SPECIAL, demandINDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
(el) The Escrow Agent may act pursuant have the right, but not the obligation, to the advice consult with counsel of counsel with respect to any matter relating to this Escrow Agreement choice and shall not be liable for any action taken or omitted to be taken by Escrow Agent in good faith and in accordance with the advice of such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide counsel; if the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) becomes involved in litigation on account of this Section 7 Agreement, it shall survive notwithstanding have the right to retain counsel and shall have a first lien on the property deposited hereunder for any termination of this Escrow Agreement or the resignation and all costs, attorneys’ fees, charges, disbursements, and expenses in connection with such litigation; and shall be entitled to reimburse itself therefor out of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (, and any successor escrow agent) at any time may if it shall be discharged unable to reimburse itself from its duties the property deposited hereunder, the parties hereto jointly and obligations hereunder by the delivery severally agree to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice pay to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver on demand its reasonable charges, counsel and attorneys’ fees, disbursements, and expenses in connection with such litigation; and
(m) have the Escrowed Property right to perform any successor escrow agent jointly designated by of its duties hereunder through agents, attorneys, custodians or nominees. Any banking association or corporation into which the other parties hereto in writingEscrow Agent may be merged, converted or with which the Escrow Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon which the Escrow Agent shall be discharged of and from a party, or any and banking association or corporation to which all further obligations arising in connection with this Escrow Agreement. The termination or resignation substantially all of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties business of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless transferred, shall succeed to all the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents Agent’s rights, obligations and immunities hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectuscontrary notwithstanding.
Appears in 1 contract
Concerning the Escrow Agent. To induce 4.1. Duties and Responsibilities of the Escrow Agent Agent. The Escrow Agent's duties and responsibilities shall be subject to act hereunder, it is further agreed by the Company following terms and Placement Agent thatconditions:
(a) The Company and the Buyers acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Company or the Buyers are entitled to receipt of the Transaction Documents or Escrowed Funds pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the Escrowed Property property held by it Escrow Agent hereunder any greater degree of care than it the Escrow Agent gives its own similar property property, but in no event less than a reasonable amount of care; and shall not (vi) may consult with counsel satisfactory to the Escrow Agent, the opinion of such counsel to be required to invest full and complete authorization and protection in respect of any funds held action taken, suffered or omitted by the Escrow Agent hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestgood faith and in accordance with the opinion of such counsel.
(b) The Company and the buyers acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by the Escrow Agent to be authorized or within the rights or powers conferred upon the Escrow Agent by this Agreement. The Company agrees to indemnify and hold harmless the Escrow Agent and any of the Escrow Agent's partners, employees, agents, and representatives for any action taken or omitted to be taken by the Escrow Agent or any of them hereunder, including the fees of outside counsel and other costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on the part of the Escrow Agent committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Company and the Buyers under this Agreement and to no other person.
(c) The Company agrees to reimburse the Escrow Agent for outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Company. Prior to the effective date of the resignation as specified in such notice, the Company will issue to the Escrow Agent an Instruction authorizing delivery of the Transaction Documents and the Escrowed Funds to a substitute escrow agent selected by the Company. If no successor escrow agent is named by the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor escrow agent, and to deposit the Transaction Documents and Escrowed Funds with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Transaction Documents or the Escrowed Funds, but is serving only as escrow agent in connection therewith, having only possession thereof.
(f) This Escrow Agreement expressly sets forth all exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No thereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to provisions of this Section 4.1 shall survive the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on or the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce (a) Each party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to act hereunderor described herein (including without limitation the Reorganization Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it is further agreed to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting (or, if so requested, refraining from acting) upon and in accordance with any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the Company proper person, and Placement Agent that:shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(ab) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrowed Property held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent's gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow AgentAgent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to * Confidential treatment has been requested for certain portions of this exhibit. The Omitted portions have been filed separately with the Commission. lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any agreement among such loss or damage and regardless of the other parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository or securities intermediary employed by the Escrow Agent than any such book-entry depository or securities intermediary has to the Escrow Agent, except for its to the extent that such action or omission of any book-entry depository or securities intermediary was caused by the Escrow Agent's own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out in breach of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine resign and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving at least 30 days' prior written notice of such resignation to such effect to the Company Parent and the Placement Agent. Upon any Stockholder specifying a date upon which such termination or resignationresignation shall take effect; PROVIDED, HOWEVER, that the Escrow Agent shall deliver continue to serve until its successor accepts the Escrowed Property to any Escrow Fund. Upon receipt of such notice, a successor escrow agent jointly designated shall be appointed by Parent and the Stockholder, such successor escrow agent to become the Escrow Agent hereunder on the resignation date specified in such notice. If a written instrument of acceptance by a successor escrow agent shall not have been received by the other parties hereto in writingEscrow Agent within 40 days after the giving of such notice of resignation, or to the resigning Escrow Agent may at the expense of Parent petition any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) for the appointment of a successor (including escrow agent. Parent and the Stockholder acting jointly, may at any time substitute a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) new escrow agent by giving 10 days' prior written notice thereof to the Escrow Agent then acting and by Parent paying all fees and expenses of the other parties' notice of termination or (B) to the other parties hereto of the such Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Escrow Agreement (GHS Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company 12.1 Duties and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree Responsibilities of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent Agent's duties and responsibilities shall not be bound by subject to the provisions of any agreement among the other parties hereto except this Escrow Agreement.following terms and conditions:
(ci) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, Purchaser and the other parties hereto shall jointly Company acknowledge and severally indemnify and hold harmless agree that the Escrow Agent (and i) shall not be required to inquire into whether the Purchaser, the Company or any successor Escrow Agentother party is entitled to receipt of any Document or all or any portion of the Escrowed Payment; (ii) from and against shall not be called upon to construe or review any and all lossesDocument or any other document, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and instrument or agreement entered into in connection with this Escrow Agreement. Without limiting therewith; (iii) shall be obligated only for the foregoing, performance of such duties as are specifically assumed by the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays pursuant to this Agreement; (not resulting from gross negligence or willful misconductiv) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent may rely on and shall be entitled to rely protected in acting or refraining from acting upon any order, judgment, certification, demand, written notice, instrument instruction, instrument, statement, request or other writing delivered document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent ; (v) may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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; (vi) shall not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent's choosing), the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(ei) The Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Purchaser and the Company hereby, jointly and severally, indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives from and against any and all actions taken or omitted to be taken by Escrow Agent or any of them hereunder and any and all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the Escrow Agent arising in any manner whatsoever out of the transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the fees of outside counsel and other costs and expenses of defending itself against any claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the transactions contemplated by this Agreement and/or any transaction related in any way hereto, except for such claims, losses, liabilities, costs, damages and expenses incurred by reason of the Escrow Agent's gross negligence or willful misconduct. The Escrow Agent shall owe a duty only to the Purchaser and Company under this Agreement and to no other person.
(ii) The Purchaser and the Company shall jointly and severally reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including counsel fees (which counsel may be Loeb & Loeb LLP or such other counsel of the Escrow Agent's choosing) incurred in connection with the performance of its duties and responsibilities hereunder, which shall not (subject to Section 4.1(b)) exceed $2,000.
(iii) The Escrow Agent may act pursuant at any time resign as Escrow Agent hereunder by giving five (5) business days prior written notice of resignation to the advice Purchaser and the Company. Prior to the effective date of counsel resignation as specified in such notice, the Purchaser and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Documents and the Escrowed Payment to a substitute Escrow Agent selected by the Purchaser and the Company. If no successor Escrow Agent is named by the Purchaser and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and deposit the Documents and the Escrowed Payment with respect the clerk of any such court and/or otherwise commence an interpleader or similar action for a determination of where to deposit the same.
(iv) The Escrow Agent does not have and will not have any matter relating to this interest in the Documents and the Escrowed Payment, but is serving only as escrow agent, having only possession thereof.
(v) The Escrow Agreement and Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be Loeb & Loeb, LLP or such adviceother counsel of the Escrow Agent's choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except to the extent any such liability arose from its own willful misconduct or gross negligence.
(fvi) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(vii) The Escrow Agent does not have shall be permitted to act as counsel for the Purchaser or the Company, as the case may be, in any interest in dispute as to the disposition of the Documents and the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from Payment, in any other dispute between the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide Purchaser and the Company, whether or not the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph is then holding the Documents and/or the Escrowed Payment and continues to act as the Escrow Agent hereunder.
(fviii) and paragraph (c) The provisions of this Section 7 4.1 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company 72.1 Duties and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree Responsibilities of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent Agent's duties and responsibilities shall not be bound by subject to the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) following terms and conditions: i The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, Purchaser and the other parties hereto shall jointly Company acknowledge and severally indemnify and hold harmless agree that the Escrow Agent (and i) shall not be required to inquire into whether the Purchaser, the Company or any successor Escrow Agentother party is entitled to receipt of any Document or all or any portion of the Escrowed Payment; (ii) from and against shall not be called upon to construe or review any and all lossesDocument or any other document, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and instrument or agreement entered into in connection with this Escrow Agreement. Without limiting therewith; (iii) shall be obligated only for the foregoing, performance of such duties as are specifically assumed by the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays pursuant to this Agreement; (not resulting from gross negligence or willful misconductiv) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent may rely on and shall be entitled to rely protected in acting or refraining from acting upon any order, judgment, certification, demand, written notice, instrument instruction, instrument, statement, request or other writing delivered document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent ; (v) may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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; (vi) shall not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent's choosing), the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(e) ii The Purchaser and the Company acknowledge that the Escrow Agent may act pursuant to is acting solely as a stakeholder at their request and that the advice of counsel with respect to any matter relating to this Escrow Agreement and Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and in accordance with such advice.
(f) The believed by Escrow Agent does not have any interest in to be authorized or within the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the rights or powers conferred upon Escrow Account shall be subject to withholding regulations then in force with respect to United States taxesAgent by this Agreement. The parties hereto will provide Purchaser and the Company hereby, jointly and severally, indemnify and hold harmless the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) any of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The 's partners, employees, agents and representatives from and against any and all actions taken or omitted to be taken by Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility any of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (them hereunder and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation any manner whatsoever out of the Escrow Agent shall take effect on transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the earlier fees of (i) outside counsel and other costs and expenses of defending itself against any claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto transactions contemplated by this Agreement and/or any transaction related in any way hereto, except for such claims, losses, liabilities, costs, damages and expenses incurred by reason of the Escrow Agent's written notice of resignationgross negligence or willful misconduct. If at that time The Escrow Agent shall owe a duty only to the Purchaser and the Company under this Agreement and to no other person. iii The Purchaser and the Company shall jointly and severally reimburse the Escrow Agent has not received a designation for its reasonable out-of-pocket expenses (including counsel fees (which counsel may be Loeb & Loeb LLP or such other counsel of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(jchoosing) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made incurred in connection with the Escrowed Propertyperformance of its duties and responsibilities hereunder, or which shall not (subject to Section 4.1(b)) exceed $2,000. iv The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) business days prior written notice of resignation to the Purchaser and the Company. Prior to the effective date of resignation as specified in such notice, the event that Purchaser and Company will issue to the Escrow Agent in good faith a Joint Instruction authorizing delivery of the Documents and the Escrowed Payment to a substitute Escrow Agent selected by the Purchaser and the Company. If no successor Escrow Agent is in doubt as to what action it should take hereundernamed by the Purchaser and the Company, the Escrow Agent shall be entitled may apply to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery in the State of New York for appointment of a successor Escrow Agent, and deposit the Documents and the Escrowed Property or (ii) a written agreement executed by Payment with the other parties hereto and consented to by the subscribers directing delivery clerk of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over and/or otherwise commence an interpleader or similar action for a determination of where to deposit the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofsame.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent Company, that:
(a) The Escrow Agent shall not be under any duty to give the Shares (the Shares deposited by the Company hereunder shall hereinafter be referred to collectively as the "Escrowed Property Property") held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestproperty.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, faith in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delaysdelay.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Escrow Property deposited hereunder but is serving as escrow holder onlyonly and having only possession thereof. the Company shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amount that it is obligated to pay in the way of such taxes. Any payments of income from the this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certificationcertifications, or W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment or funds that are part of the Escrowed Property and it is not responsible for any other reporting. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the this Escrow Agent.
(g) The Escrow Agent makes no representation representations as to the validity, value, genuineness or the collectibility collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver delivering the Escrowed Property to any successor escrow agent Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and an all further obligations arising in connection with this the Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that the time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's Agents sole responsibility after that time shall be to safe keep the Escrowed Property safe until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable order a Final Order of a court Court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents content thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court Court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order opinion is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the The Company agrees to shall pay the Escrow Agent compensation (as payment in full for the fee set forth on Exhibit F services to be rendered by the Escrow Agent hereunder) in accordance with Schedule A attached hereto (made a part and incorporated herein at the time of Closing as provided in this Escrow Agreement as if herein set forth). In addition, the Company agrees and agree to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of for its counsel). It is agreed that the Escrow Shares shall be held by Escrow Agent as collateral for such payment of fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein and Escrow Agent may, after reasonable written notice to the Company liquidate such number of Escrow Shares as is necessary and reasonable to fully reimburse Escrow Agent for any fees or expenses due hereunder. It is understood that the Escrow Agent's fees may be adjusted from time to time to conform to its then-current guidelines.
(m) All The parties hereto hereunder hereby irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting located in New York City Arizona in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) and the parties hereby irrevocably agree that all claims with in respect to of any such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient foruma Arizona court. The other parties hereby consent to and grant to any such court jurisdiction over the persons xxxxxxx of such parties and over the subject matter of any such dispute and agree that delivery or mailing of any process or other papers in connection with any such action or proceeding in the manner provided hereinaboveherein above, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, including without limitation, the Registration Statement, the Prospectuslimitation prospectuses, notices, reports and promotional material) which mentions mention the name of Escrow Agent's name Agent or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. .
(o) The Escrow Agent hereby consents Agreement shall be binding upon and inure solely to the use benefit of the parties hereto and the respective successors and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as provided in paragraph 7(i) with respect to a resignation by the Escrow Agent. No party may assign any of its name rights or obligations under this Escrow Agreement without the written consent of the other parties. This Escrow Agreement shall be construed in accordance with and governed by the internal law of Arizona (without reference to its rule as to conflicts of law). To the best knowledge of the principals to this transaction, neither the underlying transaction/purpose nor the Escrow Agreement violate any law or regulation.
(p) This Escrow Agreement may only be modified by a writing signed by all of the parties hereto, and no waiver hereunder shall be effective unless in writing signed by the party to be charged.
(q) The Company authorizes the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including. but not limited to the Depository Trust Company and the reference to the escrow arrangement in the Registration Statement and in the ProspectusFederal Reserve Book Entry System.
Appears in 1 contract
Samples: Reorganization Plan and Agreement (G/O International Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely compensation for its services hereunder at its usual and customary rates, payable in advance on an annual basis 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 establishment of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel escrow with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation all of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validityShares, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent reimbursed for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (hereunder, including reasonable fees, expenses the fees and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons payment of such parties fees, disbursements, expenses and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of advances to the Escrow Agent shall be issued borne by the other Company.
(b) The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to the Company and each Employee specifying a date not less than ten business days following the date of such notice when such resignation shall take effect. Upon such notice, a successor escrow agent shall be selected by the Company, such successor escrow agent to become the Escrow Agent hereunder upon the resignation date specified in such notice. The Escrow Agent shall continue to serve until its successor accepts the escrow and receives the Shares.
(c) The Escrow Agent undertakes to perform only such duties as are specifically set forth herein and may conclusively rely and shall be protected in acting or refraining from acting on any written notice, instrument or signature believed by it to be genuine and to have been signed or presented by the proper party or parties hereto duly authorized to do so. The Escrow Agent shall have no responsibility for the contents of any writing contemplated herein and may rely without any liability upon the contents thereof. Notwithstanding anything to the contrary in this Master Escrow Agreement, where any action is specified to be taken by the Escrow Agent upon delivery by the Company or on such parties' behalf unless an Employee (or both the Company and one or more Employees) of a notice, certificate or instructions to the Escrow Agent, the Escrow Agent shall first have given not be obligated to take any action until the appropriate party (or parties) has acted by delivering the certificate, notice or instructions to the Escrow Agent (none of which shall be binding upon the Escrow Agent unless in writing) as to the action to be taken hereunder indicating in writing that a copy of such certificate, notice or instructions has been delivered to the other party to this Master Escrow Agreement. It is acknowledged by the Company and each Employee that the Escrow Agent is bound only by the terms of this Master Escrow Agreement and the Escrow Agent may, but shall not be required to, use its specific written consent thereto. discretion with respect to any matter that is the subject of this Master Escrow Agreement or with respect to instructions received under this Master Escrow Agreement.
(d) The Escrow Agent shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized hereby consents or within the rights or powers conferred upon it hereunder, nor for action taken or omitted to be taken by it in good faith and in accordance with the use advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistakes of fact or errors of judgment or for any acts or omissions of any kind unless caused by its own willful misconduct or gross negligence. In no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Company and each Employee hereby severally, but not jointly, agree to indemnify and hold harmless the Escrow Agent and its officers, employees and agents from and against any and all costs, damages, claims, liabilities, judgments and expenses (including reasonable attorney's fees) incurred by it in connection with or arising out of the performance of its name and obligations pursuant to this Master Escrow Agreement.
(f) Any corporation into which the reference 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 arrangement Escrow Agent in its individual capacity shall be a party, or any corporation to which substantially all the Registration Statement and corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the ProspectusEscrow Agent under the Escrow Agent Agreement without further act.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent parties hereto that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liableliable for any action or failure to act in its capacity as Escrow Agent hereunder unless such action or failure to act shall constitute gross negligence or willful misconduct on the part of the Escrow Agent, except for its own in which case there shall be no indemnification obligations as provided in Paragraph 4, and the Escrow Agent shall indemnify and hold harmless the Seller, Buyer and their respective officers, directors, agents and employees from and against any loss, cost or expense (including reasonable attorneys’ fees) that they may suffer or incur as a consequence of such gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(dc) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder (collectively a “Notice”) without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent will confirm the receipt and content of any Notice with the other parties. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faithunless it has actual knowledge to the contrary, that any person purporting to give notice 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.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except as provided in paragraph 7(b) above.
(fe) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from only and having only possession thereof, and is not charged with any duty or responsibility to determine the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, validity or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter enforceability of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofdocument.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Stock Purchase Agreement (VOIS Inc.)
Concerning the Escrow Agent. To induce (a) If at any time the Escrow Agent shall receive conflicting notices, claims, demands or instructions or if for any reason it shall be unable in good faith to act hereunderdetermine the party or parties entitled to receive all or any portion of the Escrowed Shares, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty may refuse to give deliver the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property Shares to the Transfer Agent and shall not be required to invest any funds held hereunder except interplead the Escrowed Shares as directed described in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestSection 1.4 hereof.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any Homestead and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liableSCG, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally severally, shall indemnify and hold harmless the Escrow Agent (for losses and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expensesexpenses it incurs, including reasonable attorneys' fees and disbursementsfees, arising out of and in connection with this Escrow any dispute hereunder or under the Merger Agreement. Without limiting This indemnity shall include, but not be limited to, all costs incurred in connection with any interpleader which the Escrow Agent may enter into regarding this Agreement; provided, however, that if it is ultimately determined that SCG is not entitled to any Escrowed Shares that were interpled, SCG shall reimburse Homestead for all such costs. In no instance shall the Escrow Agent be bound by the terms of the Merger Agreement, the Funding Commitment Agreement or any other agreement by or among the parties to this Agreement or charged with knowledge of the terms thereof or have any duty to comply with or determine compliance with the terms thereof.
(c) Homestead and SCG, jointly and severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrowed Shares under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions of late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent on any such payment or other activities under this Agreement. Homestead and SCG undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. Homestead and SCG, jointly and severally, agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties. Notwithstanding the foregoing, no distributions will be made unless the Escrow Agent is supplied with an original, signed W-9 form or its equivalent prior to distribution.
(d) In performing any of its duties under this Agreement, neither the Escrow Agent nor any of its directors, officers or employees shall be liable to the parties hereto for any losses which may be incurred by such other parties as a result of the Escrow Agent or any of its directors, officers or employees so acting (or failing to act as a result of a dispute) and further, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation not incur any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident with respect to any such delays.
(d) The Escrow Agent shall action taken or omitted to be entitled to rely taken in reliance upon any order, judgment, certification, demand, notice, instrument advice of legal counsel or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it document delivered in connection herewith which the Escrow Agent in good faith believes to be genuine valid, including any of the certificates described herein and may assumeincluded as Exhibits hereto. In no event shall the Escrow Agent be liable for indirect, if in good faithpunitive, that any person purporting to give notice special or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do soconsequential damages.
(e) The It is understood and agreed that the duties of the Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement are purely ministerial in nature and that it shall not be liable for any action taken error of judgment, fact or law or any act done or omitted to be done except for its own willful misconduct or gross negligence. With respect to this Agreement, the Escrow Agent shall not be required to determine whether an event or condition hereunder has occurred, been met or satisfied, or as to whether a provision of this Agreement has been complied with or as to whether sufficient evidence of the event or condition or compliance with the provision has been furnished to it. No action in compliance with the terms of this Agreement, including interpleader, shall subject the Escrow Agent to any claim, liability or obligation whatsoever, even if it shall be found that such action was improper or incorrect provided only that the Escrow Agent shall not have been guilty of willful misconduct or gross negligence in making such determination. The recitals of this Agreement shall not be deemed to be made or represented to by the Escrow Agent.
(f) Homestead and SCG acknowledge and agree that the Escrow Agent (i) shall not be responsible for any of the agreements referred to herein but shall be obligated only for the performance of such duties as are specifically set forth in this Agreement, (ii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve any expense or liability unless it shall have been furnished with acceptable indemnification; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (iv) may consult counsel satisfactory to it, including house counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion of such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agentcounsel.
(g) The Escrow Agent makes shall have no representation as more or less responsibility or liability on account of any action or omission of any book-entry depository or subescrow agent employed by the Escrow Agent than any such book-entry depository or subescrow agent has to the validityEscrow Agent, value, genuineness except to the extent that such action or the collectibility omission of any security book-entry depository or other document subescrow agent was caused by the Escrow Agent's own gross negligence or instrument held by or delivered to itbad faith.
(h) The Escrow Agent All representations and indemnifications contained in this Agreement shall not be called upon to advise any party as to survive the wisdom termination of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunderthis Agreement.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it For purposes of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, this Agreement a "business day" is a day on which the Escrow Agent is open for business and shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writingnot include a Saturday, Sunday, or legal holiday. Notwithstanding anything to any court of competent jurisdiction if the contrary in this Agreement, no such successor escrow agent is agreed upon, whereupon the Escrow Agent action shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto required of the Escrow Agent's written notice of resignation. If at that time , Homestead, or SCG except on a business day and in the Escrow Agent has event an action is required on a day which is not received a designation of a successor escrow agentbusiness day, the Escrow Agent's sole responsibility after that time such action shall be required to keep be performed on the Escrowed Property safe until receipt of next succeeding day which is a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdictionbusiness day.
(j) The Escrow Agent shall have no responsibility for All action by the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain performed at the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order office of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty undertakes to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property perform only such duties as are expressly set forth herein and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of agrees to release any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash property held by it hereunder in good faith, (the “Escrowed Property”) in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) and conditions set forth in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delaysthis Agreement.
(db) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any writing or instrument or signature believed by it in good faith to be genuine and may assumewhich it, if in good faith, believes to be genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to give notice or receipt or any writing, notice, advice or make any statement or execute any document instructions in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner, and execution, or validity of any instrument deposited in this escrow, nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of the Escrowed Property, and for the disposition of the same in accordance with this Agreement. Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and until Escrow Agent has actually received written notice of such matter or thing and Escrow Agent shall not be charged with any constructive notice whatsoever.
(c) Escrow Agent shall hold in escrow, pursuant to this Agreement, the Escrowed Property actually delivered and received by Escrow Agent hereunder, but Escrow Agent shall not be obligated to ascertain the existence of (or initiate recovery of) any other property that may be part or portion of the Collateral, or to become or remain informed with respect to the possibility or probability of additional Collateral being realized upon or collected at any time in the future, or to inform any parties to this Agreement or any third party with respect to the nature and extent of any Collateral realized and received by Escrow Agent (except upon the written request of such party), or to monitor current market values of the Collateral. Further, Escrow Agent shall not be obligated to proceed with any action or inaction based on information with respect to market values of the Collateral which Escrow Agent may in any manner learn, nor shall Escrow Agent be obligated to inform the parties hereto or any third party with respect to market values of any of the Collateral at any time, Escrow Agent having no duties with respect to investment management or information, all parties hereto understanding and intending that Escrow Agent’s responsibilities are purely ministerial in nature. Any reduction in the market value or other value of the Collateral while deposited with Escrow Agent shall be at the sole risk of Pledgor and Secured Party. If all or any portion of the Escrowed Property is in the form of a check or in any other form other than cash, Escrow Agent shall deposit same as required but shall not be liable for the nonpayment thereof, nor responsible to enforce collection thereof.
(d) In the event instructions from Secured Party, Pledgor, or any other Person would require Escrow Agent to expend any monies or to incur any cost, Escrow Agent shall be entitled to refrain from taking any action until it receives payment for such costs. It is agreed that the duties of Escrow Agent are purely ministerial in nature and shall be expressly limited to the safekeeping of the Escrowed Property and for the disposition of same in accordance with this Agreement. Secured Party and the Pledgor, jointly and severally, each hereby indemnifies Escrow Agent and holds it harmless from and against any and all claims, liabilities, damages, costs, penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or charges of any character or nature (collectively, the “Claims”), which it may incur or with which it may be threatened, directly or indirectly, arising from or in any way connected with this Agreement or which may result from Escrow Agent’s following of instructions from Secured Party and the Pledgor, and in connection therewith, indemnifies Escrow Agent against any and all expenses, including attorneys’ fees and the cost of defending any action, suit, or proceeding or resisting any Claim, whether or not litigation is instituted, unless any such Claims arise as a result of Escrow Agent’s gross negligence or willful misconduct. Escrow Agent shall be vested with a lien on all Escrowed Property under the terms of this Agreement, for indemnification, attorneys’ fees, court costs and all other costs and expenses arising from any suit, interpleader or otherwise, or other expenses, fees or charges of any character or nature, which may be incurred by Escrow Agent by reason of disputes arising between Pledgor and the Secured Party, or any third party as to the correct interpretation of this Agreement, and instructions given to Escrow Agent hereunder, or otherwise, with the right of Escrow Agent, regardless of the instruments aforesaid and without the necessity of instituting any action, suit or proceeding, to hold any property hereunder until and unless said additional expenses, fees and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Pledgor.
(e) In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from Secured Party and Pledgor or from third persons with respect to the Escrowed Property, which, in Escrow Agent’s sole opinion, are in conflict with each other or with any provision of this Agreement, Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise in writing by Pledgor and Secured Party and said third persons, if any, or by a final order or judgment of a court of competent jurisdiction. If any of the parties shall be in disagreement about the interpretation of this Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole discretion, deposit the Escrowed Property with a court having jurisdiction over this Agreement, and, upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent may act pursuant shall be indemnified by the Pledgor and Secured Party for all costs, including reasonable attorneys’ fees, in connection with the aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities under this Agreement until a final decision or other settlement in the proceeding is received. In the event Escrow Agent is joined as a party to a lawsuit by virtue of the fact that it is holding the Escrowed Property, Escrow Agent shall, at its sole option, either: (i) tender the Collateral in its possession to the advice registry of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the appropriate court; or omitted (ii) disburse the Collateral in good faith and its possession in accordance with such advicethe court’s ultimate disposition of the case, and Secured Party and Pledgor hereby, jointly and severally, indemnify and hold Escrow Agent harmless from and against any damages or losses in connection therewith including, but not limited to, reasonable attorneys’ fees and court costs at all trial and appellate levels.
(f) The Escrow Agent does not have any interest in may consult with counsel of its own choice (and the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments costs of income from the Escrow Account such counsel shall be subject to withholding regulations then paid by the Pledgor and Secured Party, jointly and severally) and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in force good faith and in accordance with respect to United States taxesthe opinion of such counsel. The parties hereto will provide the Escrow Agent with appropriate W-9 forms shall not be liable for tax I.D., number certificationany mistakes of fact or error of judgment, or non-resident alien certifications. This paragraph (f) and paragraph (c) for any actions or omissions of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement kind, unless caused by its willful misconduct or the resignation of the Escrow Agentgross negligence.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving upon ten (10) days’ written notice to such effect to the Company parties in this Agreement. If a successor Escrow Agent is not appointed by Secured Party and the Placement Agent. Upon any such termination or resignationPledgor within this ten (10) day period, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of petition a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) to name a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further questionsuccessor.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Pledge and Escrow Agreement (Inventergy Global, Inc.)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give and the Issuer acknowledge and agree that the Escrowed Property held by it hereunder Funds are property of the Issuer, and that the Escrow Agent is acting exclusively as the custodian of the Issuer, and not of any greater degree other party; provided, however, that the Representative is a third-party beneficiary of care than it gives its own similar property this Escrow Agreement with full rights of enforcement with respect to any of the provisions relating to the Representative hereunder, including those contained in Section 2(d), Section 5, this Section 6(a) and Section 9(f) hereof. The Escrow Agent shall not be required to invest any funds held hereunder have no duties, responsibilities or liability except as directed expressly set forth in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by have any liability under, nor duty to inquire into, the terms and provisions of any agreement among the or instructions, other parties hereto except than as outlined in this Escrow Agreement.
(cb) The Escrow Agent shall not be liable, except for may execute any of its own gross negligence powers or willful misconduct, and, except with respect to claims based upon such gross negligence responsibilities hereunder and exercise any rights hereunder either directly or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable through its agents or attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in full and complete reliance upon any instrument or written instructions from the Issuer permitted to be given under the terms of this Escrow Agreement, and upon any signature believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give any notice or receipt or of advice or make making any statement or execute any document in connection accordance with the provisions hereof of this Escrow Agreement has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant shall have the right, but not the obligation, to consult with counsel of the advice of counsel with respect to any matter relating to this Escrow Agreement Agent’s choice and shall not be liable for any action taken or omitted in good faith and to be taken by the Escrow Agent in accordance with the advice of such advicecounsel. The Issuer shall pay any and all documented and reasonable compensation (fees, expenses and other costs) of such counsel.
(c) Nothing in this Escrow Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as agent or otherwise in any jurisdiction other than the State of New York.
(d) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the Issuer at the addresses set forth herein or at such other addresses as the Issuer shall provide, at least 30 days’ prior to the date specified for such resignation to take effect. Upon the effective date of such resignation, at the written instruction of the Issuer, all cash and other payments and all other property then held with the Escrow Agent hereunder shall be delivered by it to a successor Escrow Agent appointed by the Issuer. If no successor Escrow Agent is appointed, the Escrow Agent may apply to a court of competent jurisdiction for such appointment.
(e) In the event that any Escrowed Funds shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by any court order, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Escrow Agreement, the Escrow Agent is hereby authorized, in its sole discretion, to obey and comply with all writs, orders or decrees so entered or issued (which the Escrow Agent is advised by legal counsel selected by it as binding upon it without the need for appeal or other action), and in the event that the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable to the Issuer or to any other person, firm or corporation, by reason of such compliance notwithstanding that such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated.
(f) The In the event that the Escrow Agent does not have should at any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall time be subject to withholding regulations then in force confronted with inconsistent claims or demands with respect to United States taxes. The parties hereto will provide the Escrowed Funds, the Escrow Agent shall have the right, but not the duty, to interplead the Escrowed Funds and/or the parties making such requests or demands in any court of competent jurisdiction and request that such court determine the respective rights of the parties with appropriate W-9 forms for tax I.D.respect to the Escrowed Funds. In the event the Escrow Agent no longer holds any Escrowed Funds, number certification, it shall be released from any obligation or non-resident alien certifications. This paragraph liability as a consequence of any such claims or demands.
(fg) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of All references in this Escrow Agreement or to any other agreement are for the resignation convenience of the Issuer, and the Escrow Agent has no duties or obligations with respect thereto in its capacity as Escrow Agent.
(gh) The No provision of this Escrow Agreement shall require the Escrow Agent makes no representation as to risk or advance its own funds or otherwise incur any financial liability in the validity, value, genuineness performance of its duties or the collectibility exercise of any security or other document or instrument held by or delivered to it.
(h) The its rights under this Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunderAgreement.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for obligation to determine whether any investment set forth in a written instruction from the contents of any writing of any third party contemplated herein as a means to resolve disputes Issuer is an Escrow Investment and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain conclusively rely upon written direction from the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further questionIssuer.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Indenture (Owens-Illinois Group Inc)
Concerning the Escrow Agent. To induce 5.1 Each Interested Party acknowledges and agrees that the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(ai) The Escrow Agent shall not be under responsible for any duty of the agreements referred to give or described herein (including without limitation the Escrowed Property held by it hereunder any greater degree Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of care than it gives such duties as are expressly and specifically set forth in this Agreement on its own similar property part to be performed, each of which is ministerial (and shall not be required construed to invest any funds held hereunder except as directed be fiduciary) in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any nature, and all matters pertinent hereto. No no implied duties or obligations of any kind shall be read into this Escrow Agreement against or on the Escrow Agent. The Escrow Agent shall not be bound by the provisions part of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely protected in acting or refraining from acting upon any order, judgment, certification, demand, written notice, instrument instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other writing delivered document furnished to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature and believed by it in good faith to be genuine and to have been signed or presented by the proper person, and shall have no responsibility to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may assumeconsult counsel satisfactory to it, if in good faithincluding in-house counsel, that any person purporting to give notice or receipt and the opinion or advice or make of such counsel in any statement or execute any document instance shall be full and complete authorization and protection in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice respect of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such advicecounsel.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) 5.2 The Escrow Agent shall not be called upon liable to advise any party as to the wisdom of selling or retaining or taking or refraining from anyone for any action with respect taken or omitted to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations taken by it hereunder by except in the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto case of the Escrow Agent's written notice ’s gross negligence or willful misconduct in breach of resignationthe terms of this Agreement. If at that time In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent has not received a designation been informed of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep likelihood of such loss or damage and regardless of the Escrowed Property safe until receipt form of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdictionaction.
(j) 5.3 The Escrow Agent shall have no more or less responsibility for the contents or liability on account of any writing action or omission of any third party contemplated herein as a means book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to resolve disputes and may rely without the Escrow Agent, except to the extent that such action or omission of any liability upon book-entry depository, securities intermediary or other subescrow agent was caused by the contents thereofEscrow Agent’s own gross negligence or willful misconduct in breach of this Agreement.
(k) In the event 5.4 The Escrow Agent is hereby authorized, in making or disposing of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Propertyinvestment permitted by this Agreement, or in carrying out any sale of the event that Escrow Property permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the Escrow Agent or for any third person or dealing as principal for its own account.
5.5 Notwithstanding any term appearing in good faith is this Agreement to the contrary, in doubt as to what action it should take hereunder, no instance shall the Escrow Agent shall be entitled required or obligated to retain the Escrowed distribute any Escrow Property until (or take other action that may be called for hereunder to be taken by the Escrow Agent shall have received Agent) sooner than two (2) Business Days after (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of it has received the Escrowed Property applicable documents required under this Agreement in good form, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery passage of the Escrowed Propertyapplicable time period (or both, in which event as applicable under the Escrow Agent shall disburse terms of this Agreement), as the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory case may be.
5.6 All payments to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofU.S. dollars.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Company agrees to pay the Escrow Agent shall not be under any duty to give the Escrowed Property held Agent's fees and expenses for all services rendered by it hereunder any greater degree of care than as set forth in Exhibit B and the Escrow Agent's reasonable attorneys' fees incurred by it gives in connection with carrying out its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestduties hereunder.
(b) This The Company agrees to indemnify the Escrow Agent for, and to hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Escrow Agent, including the costs and expenses of defending itself against any claim of liability. Anything in this Agreement expressly sets forth all to the duties contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into the termination of this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not have, and hereby waives, any lien, security interest, right of set-off, or other encumbrance with respect to the Escrow Fund or any money, instruments, investment property, or other property on deposit in, credited to, or carried in the Escrow Fund, to secure its rights to be bound by paid any amounts owing under paragraphs (a) or (b) of this Section 7, and the provisions Escrow Agent agrees that it shall look solely to the Company, and not to the Escrow Fund, for the payment of any agreement among the other parties hereto except this Escrow Agreementsuch amounts.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except prepare and deliver to the Company within ten (10) Business Days after the termination of this Agreement a written account describing all transactions with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delaysFund.
(d) The duties and responsibilities of the Escrow Agent hereunder shall be entitled to rely upon any orderdetermined solely by the express provisions of this Agreement, judgment, certification, demand, notice, instrument and no other or other writing delivered to it hereunder without being required to determine the authenticity further duties or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to responsibilities shall be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do soimplied.
(e) The Escrow Agent may act pursuant upon any instrument or other writing provided by a duly authorized officer of the Company believed by it in good faith to be genuine, and to be signed or presented by the advice of counsel with respect to any matter relating to this Escrow Agreement proper person, and shall not be liable for any action taken or omitted in good faith and in accordance connection with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments performance by it of income from its duties pursuant to the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) provisions of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement Agreement, except for its own willful misconduct, bad faith or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) gross negligence. The Escrow Agent shall not be called upon under no duty to advise inquire into or investigate the validity, accuracy or content of any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities such instrument or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agentwriting. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of duty to solicit any writing of any third party contemplated herein as a means to resolve disputes and payments which may rely without any liability upon the contents thereofbe due hereunder.
(kf) In the event of any disagreement among Any corporation or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that entity into which the Escrow Agent in good faith is in doubt as its individual capacity may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding individual capacity shall be heard and determined in such New York State a party, or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process corporation or other papers in connection with any such action or proceeding in entity to which substantially all the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectusunder this Agreement without further act.
Appears in 1 contract
Samples: Escrow Deposit and Disbursement Agreement (Pg&e Corp)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-non- appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent fees determined in accordance with the fee terms set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the ProspectusStatement.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent undersigned that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall on the part of the Escrow Agent shall be read into this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liable, except liable for any action or failure to act in its own gross negligence capacity as Escrow Agent hereunder unless such action or willful misconduct, and, except with respect failure to claims based upon such gross negligence or act shall constitute willful misconduct that are successfully asserted against on the part of the Escrow Agent, and the other parties hereto in which case there shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in be no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delaysindemnification obligations.
(dc) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faithunless he has actual knowledge to the contrary, 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.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(fe) The Escrow Agent does not have any interest in the Escrowed Property Conversion Shares, Share Tranches, Transfer Agent Resolution or any other property deposited hereunder but is serving as escrow holder only. Any payments only and having only possession thereof, and is not charged with any duty or responsibility to determine the validity or enforceability of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agentsuch documents.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(if) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties resign as such by delivering the Transfer Agent Resolution and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent any Conversion Shares or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, Tranche Shares in the Escrow Agent shall deliver the Escrowed Property Agent's account to any successor escrow agent Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement thereafter. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Transfer Agent Resolution, the Conversion Shares and the Tranche Shares and not make delivery or disposition thereof until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kg) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyTransfer Agent Resolution, the Conversion Shares or the Tranche Shares, or in the event that the Escrow Agent in good faith is in doubt as to what action it otherwise determines that the Transfer Agent Resolution, the Conversion Shares or the Tranche Shares should take hereunderbe retained, then the Escrow Agent shall be entitled to may retain the Escrowed Property same until the Escrow Agent shall have received (i) a final and non-appealable nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Transfer Agent Resolution, the Conversion Shares or the Tranche Shares, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Propertysame, in which event case the Escrow Agent shall disburse promptly deliver the Escrowed Property same in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party reasonably satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablenonappealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(lh) As consideration for its agreement This Escrow Agreement shall be binding upon and inure solely to act the benefit of the parties hereto an their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as provided in paragraph (g) with respect to a resignation by the Escrow Agent as herein described, Agent.
(i) Purchasers and the Company agrees agree, jointly and severally to pay indemnify, defend and hold harmless the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for from and against any and all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language costs (including, without limitation, the Registration Statementlegal fees and expenses), the Prospectusliabilities, notices, reports claims and promotional material) which mentions the Escrow Agent's name losses arising out of or the rights, powers, in connection with this Modification Agreement or duties of any action or failure to act by the Escrow Agent under this Modification Agreement. This Modification Agreement may not be modified except in a writing signed by all the parties hereto, and no waiver hereunder shall be issued effective unless in a writing signed by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents party to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectusbe charged.
Appears in 1 contract
Samples: Modification and Settlement Agreement (Advanced Optics Electronics Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under liable for any duty to give the Escrowed Property held actions taken or omitted by it, or any action suffered by it hereunder any greater degree to be taken or omitted by it, in good faith and in the exercise of care than it gives its own similar property best judgment, and may rely conclusively and shall be protected in acting upon any order, notice demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement , instrument , report or other paper or document (not be required only as to invest its due execution and the validity and effectiveness of its provision, but also as to the truth and acceptability of any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(binformation therein contained) This Escrow Agreement expressly sets forth all the duties of which is believed by the Escrow Agent with respect to any be genuine and all matters pertinent hereto. No implied duties to be signed or obligations shall be read into this Escrow Agreement against presented by the Escrow Agentproper person or person. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the provisions Escrow Agent signed by the proper party or parties and, if the duties or rights of any agreement among the other parties hereto except this Escrow Agreement.
(c) Agent are affected, unless it shall have given its prior written consent thereto. The Escrow Agent shall not be liableresponsible for the sufficiency or accuracy, except the form of, or the execution validity, value or genuineness of any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable in any respect on account of the identity, authority or rights of the person executing or delivering or purporting to execute or deliver any document or property paid or delivered by the Escrow Agent under the provisions hereof. The Escrow Agent shall not be liable for any loss which may be incurred by reason of any investment of any monies or properties which it holds hereunder. The Escrow Agent shall have the right to assume, in the absence of written notice to the contrary from the proper person or persons, that a fact or an event by reason of which an action would or might be taken by the Escrow Agent does not exist or has not occurred, without incurring liability for any action taken or omitted, in good 24 faith and in the exercise of its own gross negligence or willful misconductbest judgment, and, except with respect to claims based in reliance upon such gross negligence assumption. The Escrow Agent shall be indemnified and held harmless by the Company form and against any expenses, including counsel fees and disbursements, or willful misconduct that are successfully asserted loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way directly or indirectly arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, the monies or other property held by it hereunder or any such expense or loss. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if a claim in respect thereof shall be made against the other parties hereto, notify such parties thereof in writing; but the failure by the Escrow Agent to give such notice shall not relieve any party form any liability which such party may have to the Escrow Agent hereunder. Upon the receipt of such notice, the Escrow Agent, and in its sole discretion, may commence an action in the other nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Account or it may deposit the Escrow Account with the clerk of any appropriate court or it may retain the Escrow Account pending receipt of a final, non-appealable order of a court having jurisdiction over all of the parties hereto shall jointly directing to whom and severally indemnify and hold harmless under what circumstances the Escrow Agent (Account is to be disbursed and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreementdelivered. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderreasonable compensation from the Company for all services rendered by it hereunder. From time to time on and after the date hereof, judgment, certification, demand, notice, instrument the Company shall deliver or other writing cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request (it hereunder without being required understood that the Escrow Agent shall have no obligation to determine make such request) to carry out more effectively the authenticity provisions and purposes of this Agreement, to evidence compliance herewith or the correctness of any fact stated therein or the propriety or validity of the service thereofto assure itself that it is protected in acting hereunder. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) resign at any time may and be discharged from its duties and obligations as Escrow Agent hereunder by the delivery to it of notice of termination signed by both its giving the Company and the Placement Agent or at any time may resign by giving least thirty (30) days' prior written notice to such effect to the Company and the Placement Agentthereof. Upon any such termination or As soon as practicable after its resignation, the Escrow Agent shall deliver the Escrowed Property turn over to any a successor escrow agent jointly designated appointed by the other parties hereto in writingCompany, or to any court all monies and property held hereunder upon presentation of competent jurisdiction if the document appointing the new escrow agent and its acceptance thereof. If no such successor new escrow agent is agreed uponso appointed in the sixty (60) day period following the giving of such notice of resignation, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of may deposit the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a Account with any court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignationit deems appropriate. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein resign and be discharged form its duties as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent hereunder if so requested in good faith is in doubt writing at anytime by the Company, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided above. Notwithstanding anything herein to what action it should take hereunderthe contrary, the Escrow Agent shall 25 not be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration relieved from liability thereunder for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred own gross negligence or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)own willful misconduct.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Escrow Agreement (4 Brandon I Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty undertakes to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property perform only such duties as are expressly set forth herein and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of agrees to release any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash property held by it hereunder in good faith, (the “Escrowed Property”) in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) and conditions set forth in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delaysthis Agreement.
(db) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any writing or instrument or signature believed by it in good faith to be genuine and may assumewhich it, if in good faith, believes to be genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to give notice or receipt or any writing, notice, advice or make any statement or execute any document instructions in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner, and execution, or validity of any instrument deposited in this escrow, nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of the Escrowed Property, and for the disposition of the same in accordance with this Agreement. Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and until Escrow Agent has actually received written notice of such matter or thing and Escrow Agent shall not be charged with any constructive notice whatsoever.
(c) Escrow Agent shall hold in escrow, pursuant to this Agreement, the Escrowed Property actually delivered and received by Escrow Agent hereunder, but Escrow Agent shall not be obligated to ascertain the existence of (or initiate recovery of) any other property that may be part or portion of the Collateral, or to become or remain informed with respect to the possibility or probability of additional Collateral being realized upon or collected at any time in the future, or to inform any parties to this Agreement or any third party with respect to the nature and extent of any Collateral realized and received by Escrow Agent (except upon the written request of such party), or to monitor current market values of the Collateral. Further, Escrow Agent shall not be obligated to proceed with any action or inaction based on information with respect to market values of the Collateral which Escrow Agent may in any manner learn, nor shall Escrow Agent be obligated to inform the parties hereto or any third party with respect to market values of any of the Collateral at any time, Escrow Agent having no duties with respect to investment management or information, all parties hereto understanding and intending that Escrow Agent’s responsibilities are purely ministerial in nature. Any reduction in the market value or other value of the Collateral while deposited with Escrow Agent shall be at the sole risk of Pledgor and Secured Party. If all or any portion of the Escrowed Property is in the form of a check or in any other form other than cash, Escrow Agent shall deposit same as required but shall not be liable for the nonpayment thereof, nor responsible to enforce collection thereof.
(d) In the event instructions from Secured Party, Pledgors, or any other Person would require Escrow Agent to expend any monies or to incur any cost, Escrow Agent shall be entitled to refrain from taking any action until it receives payment for such costs. It is agreed that the duties of Escrow Agent are purely ministerial in nature and shall be expressly limited to the safekeeping of the Escrowed Property and for the disposition of same in accordance with this Agreement. Secured Party, Pledgors and the Companies, jointly and severally, each hereby indemnifies Escrow Agent and holds it harmless from and against any and all claims, liabilities, damages, costs, penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or charges of any character or nature (collectively, the “Claims”), which it may incur or with which it may be threatened, directly or indirectly, arising from or in any way connected with this Agreement or which may result from Escrow Agent’s following of instructions from Secured Party, Pledgors or the Companies, and in connection therewith, indemnifies Escrow Agent against any and all expenses, including attorneys’ fees and the cost of defending any action, suit, or proceeding or resisting any Claim, whether or not litigation is instituted, unless any such Claims arise as a result of Escrow Agent’s gross negligence or willful misconduct. Escrow Agent shall be vested with a lien on all Escrowed Property under the terms of this Agreement, for indemnification, attorneys’ fees, court costs and all other costs and expenses arising from any suit, interpleader or otherwise, or other expenses, fees or charges of any character or nature, which may be incurred by Escrow Agent by reason of disputes arising between Pledgors, the Companies, Secured Party, or any third party as to the correct interpretation of this Agreement, and instructions given to Escrow Agent hereunder, or otherwise, with the right of Escrow Agent, regardless of the instruments aforesaid and without the necessity of instituting any action, suit or proceeding, to hold any property hereunder until and unless said additional expenses, fees and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Pledgors and the Companies, jointly and severally.
(e) In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from Secured Party, the Companies, Pledgors or from third persons with respect to the Escrowed Property, which, in Escrow Agent’s sole opinion, are in conflict with each other or with any provision of this Agreement, Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise in writing by Pledgors, the Companies and Secured Party and said third persons, if any, or by a final order or judgment of a court of competent jurisdiction. If any of the parties shall be in disagreement about the interpretation of this Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole discretion, deposit the Escrowed Property with a court having jurisdiction over this Agreement, and, upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent may act pursuant shall be indemnified by the Pledgors, the Companies and Secured Party for all costs, including reasonable attorneys’ fees, in connection with the aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities under this Agreement until a final decision or other settlement in the proceeding is received. In the event Escrow Agent is joined as a party to a lawsuit by virtue of the fact that it is holding the Escrowed Property, Escrow Agent shall, at its sole option, either: (i) tender the Collateral in its possession to the advice registry of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the appropriate court; or omitted (ii) disburse the Collateral in good faith and its possession in accordance with such advicethe court’s ultimate disposition of the case, and Secured Party, the Companies and Pledgors hereby, jointly and severally, indemnify and hold Escrow Agent harmless from and against any damages or losses in connection therewith including, but not limited to, reasonable attorneys’ fees and court costs at all trial and appellate levels.
(f) The Escrow Agent does not have any interest in may consult with counsel of its own choice (and the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments costs of income from the Escrow Account such counsel shall be subject to withholding regulations then paid by the Pledgors, the Companies and Secured Party, jointly and severally) and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in force good faith and in accordance with respect to United States taxesthe opinion of such counsel. The parties hereto will provide the Escrow Agent with appropriate W-9 forms shall not be liable for tax I.D., number certificationany mistakes of fact or error of judgment, or non-resident alien certifications. This paragraph (f) and paragraph (c) for any actions or omissions of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement kind, unless caused by its willful misconduct or the resignation of the Escrow Agentgross negligence.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving upon ten (10) days’ written notice to such effect to the Company parties in this Agreement. If a successor Escrow Agent is not appointed by Secured Party and the Placement Agent. Upon any such termination or resignationPledgors within this ten (10) day period, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of petition a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) to name a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further questionsuccessor.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in pursuant to Section 1 and Section 3 of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement. The Escrow Agent's duties are ministerial in nature.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, taxes, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and or in connection with this Escrow AgreementAgreement including the legal costs and expenses of defending itself against any claim or liability in connection with its performance hereunder. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, or as a result of any liquidation of any such investment prior to its maturity, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed PropertyFunds. Without limiting the joint and several nature of the obligations of Sellers' Representatives and Buyer pursuant to this Section 4(c), or any loss as between themselves, the Sellers' Representatives and Buyer agree that they shall each share 50% of interest incident all losses, liabilities, claims, actions, taxes, damages and expenses for which the Escrow Agent is entitled to any such delaysindemnification hereunder which, in the case of Sellers, shall be satisfied first from the Available Cash Amount and second from the Available Stock Amount.
(d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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.
(e) The Escrow Agent may act pursuant to the advice of counsel reasonably acceptable to both Sellers' Representatives and Buyer with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property any Seller's Available Cash Amount or any Seller's Available Stock Amount deposited hereunder but is serving as escrow holder onlyagent only and having only possession thereof. Any payments of income from the this Escrow Account Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will Sellers' Representatives shall provide the Escrow Agent with appropriate W-9 forms for tax I.D.identification, number certification, or non-resident nonresident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other document documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Sellers' Representatives and Buyer may jointly remove the Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of terminate this Escrow Agreement upon ten days prior written notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agentparties. Upon any such termination or resignationremoval and termination, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent all then existing Available Cash Amounts and Available Stock Amounts (including all investments) shall be discharged of and from any and all further obligations arising transferred in connection accordance with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order instructions of a court of competent jurisdictionSellers' Representatives and Buyer.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes court order and may rely without any liability upon the contents thereof.
(k) In The Escrow Agent shall be paid $[ ] annually. Buyer shall pay to the event Escrow Agent its fees for the acceptance and administration of any disagreement among or between this Escrow Agreement (pursuant to the other parties hereto and/or terms of Annex A attached hereto). All fees shall be paid in United States currency and payable in the subscribers United States at the office of the Shares resulting Escrow Agent. Notwithstanding anything in adverse claims or demands being made in connection with this Escrow Agreement to the Escrowed Propertycontrary, or in the event at any time that the Escrow Agent in good faith is in doubt as authorized or directed or otherwise required to what action it should take hereundermake a disbursement or distribution from the Escrowed Funds to Buyer, the Escrow Agent may refrain from making such disbursement or distribution from the Escrowed Funds, without liability, if and to the extent that there are any fees or expenses (including indemnities) then due to the Escrow Agent from Buyer. Upon receipt of payment for such fees or expenses, the Escrow Agent shall be entitled promptly make such disbursements or distributions to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further questionBuyer.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Purchase Agreement (Ionics Inc)
Concerning the Escrow Agent. To induce 4.1. Duties and Responsibilities of the Escrow Agent Agent. The Escrow Agent's duties and responsibilities shall be subject to act hereunder, it is further agreed by the Company following terms and Placement Agent thatconditions:
(a) The Purchaser and the Companies acknowledge and agree that the Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and (i) shall not be required to invest inquire into whether the Purchaser, any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder Company or any other party is entitled to receipt of any Document or all or any portion of the Escrowed Payment; (ii) shall not earn be called upon to construe or accrue interest.
review any Document or any other document, instrument or agreement entered into in connection therewith; (biii) This Escrow Agreement expressly sets forth all shall be obligated only for the performance of such duties of as are specifically assumed by the Escrow Agent with respect pursuant to any this Agreement; (iv) may rely on and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faithfaith to be genuine and to have been signed or presented by the proper person or party, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent ; (v) may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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; (vi) shall not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent's choosing), the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Purchaser and each Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Purchaser and each Company hereby, jointly and severally, indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives from and against any and all actions taken or omitted to be taken by Escrow Agent or any of them hereunder and any and all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the Escrow Agent arising in any manner whatsoever out of the transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the fees of outside counsel and other costs and expenses of defending itself against any claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the transactions contemplated by this Agreement and/or any transaction related in any way hereto, except for such claims, losses, liabilities, costs, damages and expenses incurred by reason of the Escrow Agent's gross negligence or willful misconduct. The Escrow Agent shall owe a duty only to the Purchaser and each Company under this Agreement and to no other person.
(c) The Purchaser and each Company shall jointly and severally reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including counsel fees (which counsel may be Loeb & Loeb LLP or such other counsel of the Escrow Agent's choosing) incurred in connection with the performance of its duties and responsibilities hereunder, which shall not (subject to Section 4.1(b)) exceed $1500.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) business days prior written notice of resignation to the Purchaser and Catalyst. Prior to the effective date of resignation as specified in such notice, the Purchaser and each Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Documents and the Escrowed Payment to a substitute Escrow Agent selected by the Purchaser and the each Company. If no successor Escrow Agent is named by the Purchaser and each Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and deposit the Documents and the Escrowed Payment with the clerk of any such court and/or otherwise commence an interpleader or similar action for a determination of where to deposit the same.
(e) The Escrow Agent may act pursuant to does not have and will not have any interest in the advice of counsel with respect to any matter relating to this Documents and the Escrowed Payment, but is serving only as escrow agent, having only possession thereof.
(f) The Escrow Agreement and Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be Loeb & Loeb, LLP or such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation other counsel of the Escrow Agent's choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except to the extent any such liability arose from its own willful misconduct or gross negligence.
(g) The This Agreement sets forth exclusively the duties of the Escrow Agent makes with respect to any and all matters pertinent thereto and no representation as to the validity, value, genuineness implied duties or the collectibility of any security or other document or instrument held by or delivered to itobligations shall be read into this Agreement.
(h) The Escrow Agent shall not be called upon permitted to advise act as counsel for the Purchaser or any party Company, as the case may be, in any dispute as to the wisdom disposition of selling the Documents and the Escrowed Payment, in any other dispute between the Purchaser and any Company, whether or retaining or taking or refraining from any action with respect not the Escrow Agent is then holding the Documents and/or the Escrowed Payment and continues to any securities or other property deposited act as the Escrow Agent hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by provisions of this Section 4.1 shall survive the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on or the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce (a) The Escrow Agent may resign at any time by giving notice to Buyer and the Shareholders' Representative, specifying a date on which its resignation is to take effect. Upon receipt of such notice Buyer and the Shareholders' Representative shall appoint a successor Escrow Agent, such successor Escrow Agent to become the Escrow Agent when the resignation of the former Escrow Agent becomes effective. If Buyer and the Shareholders' Representative are unable to act hereunderagree upon a successor Escrow Agent within 30 days after receipt of such notice, it is further agreed the Escrow Agent shall appoint its own successor. The Escrow Agent shall continue to serve until its successor accepts its appointment by adoption of this Escrow Agreement in writing and receives the Escrow Fund. Buyer and the Shareholders' Representative shall have the right, at any time, by agreement, to substitute a new Escrow Agent by giving 30 days notice thereof to the Escrow Agent then acting. Any successor Escrow Agent shall be bound by the Company and Placement Agent that:provisions of this Escrow Agreement as if it were the original Escrow Agent.
(ab) The Escrow Agent shall not be under liable for any duty action it takes or fails to give take which it reasonably believes is within the Escrowed Property held by rights or powers conferred upon it hereunder any greater degree hereunder, or for action which it takes, or fails to take, in good faith and in accordance with advice of care than it gives its own similar property and shall not counsel (which counsel may be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall Agent's own choosing but may not be read into this Escrow Agreement against the Escrow AgentMcGuire, Woods, Battle & Xxxxxx LLP itself). The Escrow Agent shall not be bound by the provisions liable for any mistake it may make or for any acts or omissions of any agreement among the other parties hereto except this Escrow Agreementkind unless caused by its willful misconduct or gross negligence.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, Buyer and the other parties hereto shall jointly and severally Shareholders each agree to indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all lossesliabilities incurred by the Escrow Agent as a consequence of its, liabilitieshis or her own respective actions and, claimsin the case of the Shareholders, actions, damages the actions of the Shareholders' Representative. Buyer and expenses, including reasonable attorneys' fees the Shareholders agree jointly to indemnify and disbursements, arising out hold harmless the Escrow Agent from any and all liabilities incurred by the Escrow Agent that are not a consequence of and in connection with the action of any party to this Escrow Agreement. Without limiting the foregoingHowever, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of responsible for any cash held liability incurred by it hereunder in good faith, in accordance with which is the terms hereof, including without limitation any liability for any delays (not resulting from result of its own willful misconduct or gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delaysnegligence.
(d) The Shareholders acknowledge that the Escrow Agent shall be entitled has served as counsel to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document Buyer in connection with the provisions hereof has been duly authorized to do so.
(e) The Acquisition Agreement and the transactions contemplated thereby, and agree that nothing herein shall affect in any way Escrow Agent may act pursuant to Agent's continued representation of Buyer or other persons affiliated therewith and that in the advice event of counsel a dispute between the Shareholders and Buyer with respect to any matter relating to matter, including the Acquisition Agreement, the transactions contemplated thereby or this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide Agreement, the Escrow Agent with appropriate W-9 forms for tax I.D.may represent Buyer in such dispute. Such representation shall not, number certificationin and of itself, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or cause the resignation disqualification of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property Escrow Shares held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this the Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestShares.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' attorney’s fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety proprieties, validity or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give notice or advice, accept receipt of or advice execute any document, or make any statement or execute any document in connection with the provisions hereof hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and and, except for its own gross negligence or willful misconduct, the Escrow Agent shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from only and has no interest in the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certificationsShares deposited hereunder. This paragraph (fSection 3(f) and paragraph (cSection 3(c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, delivering the Escrow Agent shall deliver the Escrowed Property Shares to any successor escrow agent Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's ’s sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Escrow Shares until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the court or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyEscrow Shares, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Escrow Shares until the Escrow Agent shall have received (i) a final and non-appealable nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Escrow Shares, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyEscrow Shares, in which event the Escrow Agent shall disburse the Escrowed Property Escrow Shares in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablenonappealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(l) As consideration for its agreement Notwithstanding anything to act the contrary contained herein, in the event of any dispute between the parties hereto as Escrow Agent as herein describedto the facts of default, the Company agrees validity or meaning of these instructions or any other fact or matter relating to pay the transaction between the parties, the Escrow Agent is instructed as follows:
(i) that it shall be under no obligation to act, except under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) that it may in its sole and absolute discretion, deposit the fee set forth on Exhibit F hereto (made a part property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of this Escrow Agreement the Circuit Court of the State of California located in Los Angeles, California, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as if herein set forth). In additionto the property so deposited, and furthermore, the Company agrees parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to reimburse the jurisdiction of said court. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 3(c) above.
(m) Pubco, on the one hand, and the Stockholders, on the other hand, each agree to pay one-half of the Escrow Agent’s fees for all the services hereunder, which shall be an aggregate amount of [$ ]. All reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid allocated equally between Pubco, on the one hand, and sufficient service thereofthe Stockholders, on the other hand.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectusprospectuses, notices, reports and promotional materialmaterials) which mentions the Escrow Agent's ’s name or the rights, powers, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' ’ behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce (a) The Buyer and the Indemnifying Securityholders acknowledge and agree that the Escrow Agent (i) shall not be responsible for any of the agreements referred to act hereunderor described herein (including without limitation the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its reasonable judgment involve or cause it is further agreed to incur any expense or liability unless it shall have been furnished with reasonably acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the Company proper person, and Placement Agent that:shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(ab) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrowed Property held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any agreement among such loss or damage and regardless of the other parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except for its to the extent that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out in breach of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, to deal with itself (in its individual capacity) or the propriety with any one or validity more of its affiliates, whether it or such affiliate is acting as a subagent of the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any portion of the Holdback Fund (or take other action that may act pursuant be called for hereunder to be taken by the advice of counsel with respect to any matter relating to Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such adviceform, or (ii) passage of the applicable time period (or both, as applicable under the terms of this Agreement), as the case may be.
(f) The Escrow Agent does not have any interest in Unless and except to the Escrowed Property deposited hereunder but is serving as escrow holder only. Any extent otherwise expressly set forth herein, all deposits and payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certificationhereunder, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as pursuant to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor terms hereof (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) without limitation all payments to the Escrow Agent of the other parties' notice of termination or (B) pursuant to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forthSection 7). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofin U.S. dollars.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give exercise the same degree of care toward the Escrowed Property held by as it hereunder any greater degree of care than it gives exercises toward its own similar property and shall not be required held to invest any funds held hereunder except as directed in higher standard of care under this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest, nor be deemed to owe any fiduciary duty to the Company.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature other writing believed by it in good faith to be genuine and may assumeto have been signed or presented by the proper person, if in good faith, that and shall not be liable to any person purporting to give notice or receipt or advice or make any statement or execute any document party hereto in connection with the provisions hereof has been duly authorized performance of its duties hereunder, except for its own negligence, wilful misconduct or bad faith. The duties of the Escrow Agent shall be determined only with reference to this Agreement and applicable laws, and the Escrow Agent is not charged with any knowledge of or any duties or responsibilities in connection with any other document or agreement. If in doubt as to its duties and responsibilities hereunder, the Escrow Agent may consult with counsel of its choice and shall be protected in any action taken or omitted in good faith in connection with the advice or opinion of such counsel.
(c) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder either directly or by or through its agents or attorneys.
(d) Nothing in this Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do sobusiness or to act as agent or otherwise in any jurisdiction other than the State of Maryland.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement shall not be responsible for and shall not be liable for under a duty to examine into or pass upon the validity, binding effect, execution or sufficiency of this Agreement, any action taken agreement amendatory or omitted in good faith and in accordance with such advicesupplemental hereto or of any certificates delivered to it hereunder.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other document or instrument held by or delivered to it.
(hg) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining retaining, or taking or refraining from taking any action with respect to to, any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(jh) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the Company at the address set forth herein or at such other address as the Company shall provide, at least 60 days prior to the date specified for such resignation to take effect. 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 a successor escrow agent. If no responsibility successor escrow agent is appointed, the Escrow Agent may apply to a court of competent jurisdiction for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofsuch appointment.
(ki) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as should at any time be confronted with inconsistent claims or demands to what action it should take hereunderthe Escrowed Property, the Escrow Agent shall be entitled have the right, but not the duty, to retain interplead the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a parties in any court of competent jurisdiction directing delivery and request that such court determine the respective rights of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented with respect to by the subscribers directing delivery of the Escrowed Property, in which . In the event the Escrow Agent shall disburse the no longer holds any Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above Property, it shall be accompanied by released from any obligation or liability as a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter consequence of any such dispute and agree that delivery claims or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofdemands.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Escrow and Pledge Agreement (Up Offshore (Holdings) Ltd.)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, ---------------------------- it is further agreed by the Company and Placement Agent Underwriter that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto Company will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-non- resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 6 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent Underwriter or at any time may resign by giving written notice to such effect to the Company and the Placement AgentUnderwriter. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any an enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order E-47 of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-non- appealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company Company, agrees to pay the Escrow Agent fees determined in accordance with the fee terms set forth on Exhibit F E hereto (and made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in to the Prospectusfiling of this Agreement and the subscription agreements with respect to the Shares as exhibits to the Registration Statement.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(aA) The Escrow Agent shall not be under any duty to give the Escrowed Property Escrow Shares held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestproperty.
(bB) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including including, without limitation limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed PropertyEscrow Shares, or any loss of interest incident to any such delays.
(dC) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, assume that any the 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. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(eD) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted by it in good faith and in accordance with such advice.
(fE) The Escrow Agent does not have any interest in the Escrowed Property Escrow Shares deposited hereunder but is serving as escrow holder onlyEscrow Agent only and having only possession thereof. Any payments of income from the this Escrow Account Shares shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate Internal Revenue Service Forms W-9 forms for tax I.D., identification number certification, or non-non- resident alien certificationscertifications and a form of Shareholder "Non-Objection" Letter hereto attached as Exhibit A and Exhibit B, respectively. This paragraph (fSection 4(e) and paragraph (cSection 4(b) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(gF) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other document or instrument held by or delivered to it.
(hG) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(iH) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, delivering the Escrow Agent shall deliver the Escrowed Property Shares to any successor escrow agent Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day that which is 30 thirty (30) days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep retain and safeguard the Escrowed Property safe Escrow Shares until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final non-appealable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kI) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, Escrow Shares or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Escrow Shares until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Escrow Shares or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyEscrow Shares, in which event the Escrow Agent shall disburse the Escrowed Property Escrow Shares in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(lJ) As consideration for its agreement to act as Award shall pay Escrow Agent compensation (as herein described, payment in full) for the Company agrees services to pay the be rendered by Escrow Agent hereunder pursuant to the fee set forth on schedule attached hereto as Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).C.
(mK) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent hereto authorize Escrow Agent, for any securities held hereunder, to and grant any such court jurisdiction over use the persons of such parties and over the subject matter services of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinaboveUnited States central securities depository it reasonably deems appropriate, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration StatementDepository Trust Company and the Federal Reserve Book Entry System.
(L) Escrow Agent may resign at any time upon giving at least thirty (30) days written notice to the Parties; provided, however, that no such resignation shall become effective until the Prospectusappointment of a successor escrow agent which shall be accomplished as follows: The Parties shall use their best efforts to mutually agree on a successor escrow agent within thirty (30) days after receiving such notice. If the Parties fail to agree upon a successor escrow agent within such time, noticesEscrow Agent shall have the right to appoint a successor escrow agent authorized to do business in the state of California. The successor escrow agent shall execute and deliver an instrument accepting such appointment and it shall, reports and promotional material) which mentions without further acts, be vested with all the Escrow Agent's name or the estates, properties, rights, powers, or and duties of the predecessor escrow agent as if originally named as escrow agent. Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless discharged from any further duties and liability under this Agreement.
(M) Any company into which the Escrow Agent shall first have given its specific written consent thereto. The may be merged or with which it may be consolidated, or any company to whom Escrow Agent hereby consents may transfer a substantial amount of its Global Escrow business, shall be the Successor the Escrow Agent without the execution or filing of any paper or any further act on the part of any of the Parties, anything herein to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectuscontrary notwithstanding.
Appears in 1 contract
Samples: Escrow Agreement (Award Software International Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company Shareholder and Placement Agent FGC that:
(ai) The Escrow Agent shall not be under any duty to give the Escrowed Property Shares held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(bii) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(ciii) The Escrow Agent shall not be liable, except for its own gross negligence negligence, willful misconduct or willful misconductbreach of any representations, warranties or covenants contained in this Agreement, and, except with respect to claims based upon such gross negligence or negligence, willful misconduct or breach that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of of, and in connection with with, this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(div) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument instrument, or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(ev) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(fvi) The Escrow Agent does not have any interest in the Escrowed Property Shares deposited hereunder hereunder, but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (fvi) and paragraph (ciii) of this Section 7 Article III shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(gvii) The Escrow Agent makes no representation as to the validity, value, genuineness genuineness, or the collectibility of any security or other document documents or instrument held by by, or delivered to to, it.
(hviii) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(iix) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company Shareholder and the Placement Agent FGC or at any time may resign by giving written notice to such effect to the Company Shareholder and the Placement AgentFGC. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property Shares to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (iA) the appointment of a successor (including a court of competent jurisdiction) or (iiB) the day that is 30 days after the date of delivery: (A1) to the Escrow Agent of the other parties' written notice of termination or (B2) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property Shares safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any an enforceable order of a court of competent jurisdiction.
(jx) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kxi) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyShares, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Shares until the Escrow Agent shall have received (iA) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Shares or (iiB) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyShares, in which event the Escrow Agent shall disburse the Escrowed Property Shares in accordance with such order or agreement. Any court order referred to in (iA) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(lxii) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to FGC shall pay the Escrow Agent fees determined in accordance with the fee terms set forth on Exhibit F A hereto (and made a part of this Escrow Agreement as if herein set forth). In addition, FGC and the Company agrees Shareholder agree to reimburse the Escrow Agent for all reasonable expenses, disbursements disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses expenses, and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit and to share equally the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service costs thereof.
(nxiii) No printed publicly distributed material or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports notices and promotional materialreports) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent parties hereto that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liableliable for any action or failure to act in its capacity as Escrow Agent hereunder unless such action or failure to act shall constitute gross negligence or willful misconduct on the part of the Escrow Agent, except for its own in which case there shall be no indemnification obligations as provided in Paragraph 4, and the Escrow Agent shall indemnify and hold harmless the Seller, Buyer and their respective officers, directors, agents and employees from and against any loss, cost or expense (including reasonable attorneys’ fees) that they may suffer or incur as a consequence of such gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(dc) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder (collectively a “Notice”) without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent will confirm the receipt and content of any Notice with the other parties. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faithunless it has actual knowledge to the contrary, that any person purporting to give notice 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.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except as provided in paragraph 7(b) above.
(e) The Escrow Agent is serving as escrow holder only and having only possession thereof, and is not charged with any duty or responsibility to determine the validity or enforceability of any such document.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties resign as such by delivering the Stock Certificate(s) and obligations hereunder by the delivery to it of notice of termination signed by both the Company Documents and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property Purchase Funds to any successor escrow agent Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement thereafter. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's ’s sole responsibility after that time shall be to safe keep the Escrowed Property safe deposited Stock Certificate(s) and Documents and Purchase Funds and not make delivery or disposition thereof until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kg) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyStock Certificate(s), Documents or Purchase Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it otherwise determines that the Stock Certificates, Documents and/or Purchase funds should take hereunderbe retained, then the Escrow Agent shall be entitled to may retain the Escrowed Property Stock Certificate(s), Documents and/or Purchase Funds until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Stock Certificate(s) and/or Purchase funds, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyStock Certificate(s), Documents and/or Purchase Funds, in which event case the Escrow Agent shall disburse promptly deliver the Escrowed Property Stock Certificate(s), Documents and/or Purchase Funds in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party reasonably satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order make no independent determination regarding the Stock Certificate(s), Documents or Purchase Funds absent the filing and notice of a legal opinion without further questionaction by one or both of the parties.
(lh) As consideration for its agreement This Agreement shall be binding upon and inure solely to act the benefit of the parties hereto and their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as Escrow Agent as herein described, the Company agrees provided in paragraph 7(g) with respect to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made resignation by the Escrow Agent. Each entity that is a party hereto represents and warrants that they have the full power and authority to bind the entity and that Escrow Agent may rely upon such representation with out further inquiry. This Agreement may be modified only in performance writing, signed by all of its duties the parties hereto, and no waiver hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined effective unless in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued writing signed by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents party to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectusbe charged.
Appears in 1 contract
Samples: Stock Purchase Agreement (VOIS Inc.)
Concerning the Escrow Agent. To induce (a) The Company, TWC and Leucadia agree to indemnify, jointly and severally, the Escrow Agent Agent, and its officers, directors, employees and agents, for, and to act hold it and each of them harmless against, any loss, liability or expense arising out of or in connection with this Agreement and carrying out its duties hereunder, it is further agreed by including, without limitation, the Company cost and Placement Agent that:expenses of defending itself against any claim of liability; provided, however, that none of the Company, TWC or Leucadia will be liable for indemnification or otherwise for any loss, liability or expense to the extent arising out of the gross negligence, willful misconduct or bad faith of the Escrow Agent.
(ab) The Escrow Agent shall not be under any duty to give exercise the same degree of care toward the Escrowed Property held by as it hereunder any greater degree of care than it gives exercises toward its own similar property and shall not be required held to invest any funds held hereunder except as directed in higher standard of care under this Escrow Agreement. Uninvested funds held hereunder shall not earn , nor be deemed to owe any fiduciary duty to the Company, TWC or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow AgreementLeucadia.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely may act upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assumeto have been signed or presented by the proper Person, if in good faith, that and shall not be liable to any person purporting to give notice or receipt or advice or make any statement or execute any document party hereto in connection with the provisions hereof has been duly authorized to do so.
(e) performance of its duties hereunder, except for its own gross negligence, willful misconduct or bad faith. The duties of the Escrow Agent may act pursuant to the advice of counsel shall be determined only with respect to any matter relating reference to this Escrow Agreement and applicable laws and the Escrow Agent is not charged with any knowledge of, or any duties or responsibilities in connection with, any other document or agreement. If in doubt as to its duties and responsibilities hereunder, the Escrow Agent may consult with counsel and shall not be liable for protected in any action taken or omitted in good faith in reliance on the advice or opinion of such counsel.
(d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder either directly or by or through its agents or attorneys.
(e) Nothing in accordance with such advicethis Escrow Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as agent or otherwise in any jurisdiction other than the State of New York.
(f) The Escrow Agent does shall not have any interest in be responsible for and shall not be under a duty to examine into or pass upon the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D.validity, number certificationbinding effect, execution or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination sufficiency of this Escrow Agreement Agreement, any agreement amendatory or the resignation supplemental hereto or of the Escrow Agentany certificates, notices or other writings delivered to it hereunder.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining retaining, or taking or refraining from taking any action with respect to to, any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) shall have the right at any time may be discharged from to resign hereunder (subject to a successor agent becoming a party hereto) by giving, at least thirty (30) days prior to the date specified for such resignation to take effect, written notice of its duties resignation to the Company, TWC, Leucadia and obligations hereunder the Administrative Agent at the addresses set forth herein, or at such other addresses as the Company, TWC, Leucadia and the Administrative Agent shall provide. Upon the effective date of such resignation, all property then held by the delivery Escrow Agent hereunder shall be delivered by it to it a successor escrow agent selected by the Company, TWC and Leucadia. Such successor escrow agent shall be a bank or trust company in good standing organized and doing business under the laws of notice the United States or any state thereof, subject to examination by state or federal authorities, and having combined capital and surplus of termination signed by both not less than $500,000,000 which is authorized under the Company and laws of its jurisdiction of incorporation to exercise corporate trust powers. If no successor escrow agent is appointed within thirty (30) days, the Placement Escrow Agent or may apply to a court of competent jurisdiction for such appointment, but shall remain Escrow Agent until a successor agent shall become a party hereto.
(j) If the Escrow Agent should at any time may resign by giving written notice to such effect be confronted with inconsistent claims or demands to the Company and the Placement Agent. Upon any such termination or resignationEscrowed Property, the Escrow Agent shall deliver interplead the parties in the Bankruptcy Court, and request that such court determine the respective rights of the parties with respect to the Escrowed Property to any successor escrow agent jointly designated by Property. In the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon event the Escrow Agent no longer holds any Escrowed Property, it shall be discharged of and released from any and all further obligations arising in connection with this Escrow Agreement. The termination obligation or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of liability as a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents consequence of any writing such claims or demands, other than those arising out of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofits gross negligence or willful misconduct.
(k) In the event of any disagreement among or between fund transfer instructions are given (other than in writing at the other parties hereto and/or the subscribers time of the Shares resulting execution of the Agreement), whether in adverse claims writing, by telecopier or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderotherwise, the Escrow Agent shall be entitled is authorized to retain seek confirmation of such instructions by telephone call-back to the Escrowed Property until person or persons designated on the call-back schedule attached hereto (the "Call-Back Schedule"), and the Escrow Agent shall have may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed acknowledged by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event Escrow Agent. If the Escrow Agent is unable to contact any of the authorized representatives identified in the Call-Back Schedule, the Escrow Agent is hereby authorized to seek confirmation of such instructions by telephone call-back to any one or more of a party's executive officers, ("Executive Officers"), which shall disburse include the Escrowed Property in accordance with such order or agreementtitles of Chief Executive Officer, Executive Vice President, General Counsel and Secretary, as the Escrow Agent may select. Any court order referred to in (i) above Such "Executive Officer" shall be accompanied by a legal opinion by counsel for the presenting party satisfactory deliver to the Escrow Agent a fully executed incumbency certificate, and the Escrow Agent may rely upon the confirmation of anyone purporting to the effect that said court order is final and non-appealablebe any such officer. The Escrow Agent shall act on and the beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the Company, TWC or Leucadia to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank. The Escrow Agent may apply any of escrowed funds for any payment order it executes using any such court order and legal opinion without further questionidentifying number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary's bank or an intermediary bank designated. The parties to this Agreement acknowledge that such security procedure is commercially reasonable.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Any corporation into which the Escrow Agent in performance 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 duties hereunder (including reasonable feesindividual capacity may be transferred, expenses and disbursements of its counsel)shall be the Escrow Agent under this Escrow Agreement without further act.
(m) All Anything in this Escrow 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 for the likelihood for such loss or damage and regardless of the form of action. The parties hereto irrevocably (i) submit to acknowledge that the jurisdiction foregoing indemnities shall survive the resignation or removal of any New York State the Escrow Agent or federal court sitting in New York City in any action or proceeding arising out the termination of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, Distribution of the Registration Statement, funds received under the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties Letters of Credit shall not be subject to offset by the Escrow Agent shall be issued by for any payment or other obligations of the Company, TWC or Leucadia hereunder or otherwise, for any claim against any of the Company, TWC or Leucadia or for any other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectusreason whatsoever.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interesthereunder.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement by or among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence negligence, willful misconduct or willful misconductbreach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence or negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, Company and the other parties hereto NCPS shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety proprieties, validity or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give notice or advice, accept receipt of or advice execute any document, or make any statement or execute any document in connection with the provisions hereof hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder onlyonly and has no interest in the Escrow Funds deposited hereunder. Any payments of income from the this Escrow Account Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto Company will provide the Escrow Agent with appropriate W-9 W9 forms for tax I.D., identification number certification, certification or non-resident nonresident alien certifications. This paragraph (fSection 5(f) and paragraph (cSection 5(c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by delivering the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property Funds to any successor escrow agent Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of of
(i) the appointment of a successor (including a court of competent jurisdiction) or or
(ii) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Funds until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyFunds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Funds until the Escrow Agent shall have received received
(i) a final and non-appealable nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or Funds or
(ii) a written agreement executed by the other parties party[ies] hereto and consented to by the subscribers directing delivery of the Escrowed PropertyFunds, in which event the Escrow Agent shall disburse the Escrowed Property Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion by of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablenonappealable. The Escrow Agent shall act on such court order and legal opinion opinions without further question.
(l) As consideration Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its agreement failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with Clerk of the Court of Xxxxxxxx County, State of Kentucky, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent as herein described, the under Section 5(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the fee services of the Escrow Agent described herein, as set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth)in numbered paragraph 6 below. In addition, the Company agrees to reimburse the Escrow Agent for pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the ProspectusOfferings, notices, reports and promotional materialmaterials) which mentions the Escrow Agent's name or the rights, powers, powers or duties of the Escrow Agent shall be issued by the any other parties party hereto or on such parties' party's behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectussuch mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Escrow Agreement
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held will have no duties or obligations other than those specifically set forth in or contemplated by it hereunder any greater degree this Escrow Agreement, each of care than it gives its own similar property which is ministerial (and shall not be required construed as fiduciary) and the Escrow Agent will not be responsible for any of the agreements referred to invest any funds held hereunder except as directed in this Escrow herein, including the Merger Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This The Escrow Agreement expressly sets forth all the duties of Agent will be fully protected in acting on and relying upon any written notice, direction, request, waiver, consent, receipt or other paper or document which the Escrow Agent with respect in good faith believes to any and all matters pertinent hereto. No implied duties have been signed or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound presented by the provisions proper party or parties, but will not act on oral instructions alone of any agreement among the other parties hereto except this Escrow Agreementparty.
(c) The Escrow Agent shall will not be liableobligated to take any action hereunder which might in its reasonable judgment involve any extraordinary expense or liability, except unless the payment of such expense or liability is provided for its own gross negligence or willful misconduct, and, except with respect in a manner satisfactory to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall and its directors, officers or employees will not be entitled to rely upon liable for any order, error of judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity for any act done or the correctness of any fact stated therein step taken or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed omitted by it in good faith to be genuine and or for any mistake in fact or law, or for anything which it may assume, if in good faith, that any person purporting to give notice do or receipt or advice or make any statement or execute any document refrain from doing in connection with the provisions hereof has been duly authorized to do sothis Escrow Agreement, except for its own gross negligence, willful misconduct or act of bad faith.
(e) The Escrow Agent may act pursuant to seek the advice of counsel with respect legal counsel, including in-house counsel, in the event of any dispute or question as to the construction of any matter relating to of the provisions of this Escrow Agreement or its duties hereunder, and shall not it will incur no liability and will be liable for fully protected in respect of any action taken taken, omitted or omitted suffered by it in good faith and in accordance with the opinion of such advicecounsel.
(f) The Escrow Agent does not have any interest will be compensated on the basis of its regular fees as set forth on Exhibit B, plus reasonable out-of-pocket expenses, including the reasonable fees and costs of attorneys or agents in connection with the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination preparation of this Escrow Agreement or which it may find necessary to engage in performing its duties under this Escrow Agreement (the resignation "Escrow Fees") which will be invoiced to META. META will be responsible for all of the such Escrow AgentFees.
(g) The Escrow Agent makes shall have no representation as more or less responsibility or liability on account of any action or omission of any book-entry depository or subescrow agent employed by the Escrow Agent than any such book-entry depository or subescrow agent has to the validityEscrow Agent, value, genuineness except to the extent that such action or the collectibility omission of any security book-entry depository or other document subescrow agent was caused by the Escrow Agent's own gross negligence, bad faith or instrument held by or delivered to itwillful misconduct.
(h) META and the Stockholder Representative agree to treat the Escrow established hereunder either as (i) a "grantor trust" or (ii) an agency or custody arrangement for all tax purposes, and META and the Stockholder Representative will be responsible for all tax and other filings with respect to the Escrow Shares. The Escrow Agent shall have no obligation to prepare, sign or file any federal, state or local tax returns and shall not be deemed to be a trustee or fiduciary on account of the foregoing. Furthermore, META and the Stockholder Representative shall instruct the Escrow Agent in writing as to the identity of the grantor and the trustee under the grantor trust (if META and the Stockholder Representative agree to treat the Escrow established hereunder as a grantor trust) or as to the principal of the agency or custody arrangement (if META and the Stockholder Representative agree to treat the Escrow established hereunder as an agency or custody arrangement), and with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, and shall instruct the Escrow Agent with respect to any certifications and governmental reporting that may be required under any laws or regulations that may be applicable in connection with its acting as Escrow Agent under this Agreement; provided however, that such written instructions shall be reasonably acceptable to the Escrow Agent. Except as provided below, neither META, the Stockholder Representative nor the Escrow Agent shall have any liability to any person on account of taxes, assessments, additions for late payment, interest, penalties, expenses and other governmental charges that may be assessed or asserted against META, the Stockholder Representative or the Escrow Agent in connection with or relating to any payment made or other activities performed under the terms of this Agreement, including, without limitation, any liability for the withholding or deduction of (or the failure to withhold or deduct) the same, and any liability for failure to obtain proper certifications or to report properly to governmental authorities in connection with this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties (individually, a "Tax Liability"). Notwithstanding the foregoing, META shall indemnify and hold the Escrow Agent harmless from any Tax Liability. The Escrow Agent hereby agrees to act in accordance with the written instructions delivered to the Escrow Agent by META and the Stockholder Representative in accordance with this Section 3(h); and notwithstanding the foregoing, if the Escrow Agent is grossly negligent in failing to comply with such written instructions, the immediately preceding sentence shall not apply to the Escrow Agent, and the Escrow Agent shall not be called upon to advise any party as entitled to the wisdom limitation on Tax Liability provided in the fourth sentence of selling this Section 3(h). The Stockholder Representative acknowledges and agrees with META that the Stockholders shall contribute to the amount paid or retaining or taking or refraining from payable by META as a result of any action with respect to any securities indemnification obligation or other property deposited hereunderliability (including reasonable legal fees and expenses) to which META may become subject under or in connection with this Section 3(h) in such proportion as is appropriate to reflect, as between META and the Stockholders, the party responsible for the payment of any such Tax Liability.
(i) The Escrow Agent will be, and hereby is, indemnified and saved harmless by META and the Stockholder Representative, jointly and severally, from all liabilities, losses, costs and expenses (including reasonable attorneys' fees and any successor escrow agentexpenses) at any time which may be discharged incurred by it as a result of or arising out of this Escrow Agreement, including its involvement in any arbitration or litigation arising from performance of its duties and obligations hereunder under this Escrow Agreement, other than litigation or arbitration resulting from or with respect to any action taken or omitted by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto for which it will have been adjudged grossly negligent or guilty of willful misconduct or bad faith. Such indemnifications in writing, or to any court Sections 3(h) and (i) hereof will survive termination of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving thirty (30) days prior written notice of resignation to META and the Stockholder Representative. Prior to the effective date of the resignation as specified in such notice, META will issue to the Escrow Agent a written instruction authorizing redelivery of the Escrow Shares to a bank or trust company that it selects. Such bank or trust company shall have capital, surplus and undivided profits in excess of $100,000,000. If, however, META shall fail to name a successor escrow agent within twenty (20) days after the notice of resignation from the Escrow Agent, the Stockholder Representative shall be entitled to name such successor escrow agent. If no responsibility successor escrow agent is named by META or the Stockholder Representative, the Escrow Agent may apply to a court of competent jurisdiction for the contents appointment of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofsuccessor escrow agent.
(k) In the event of any disagreement among If a controversy arises between one or between the other parties hereto and/or the subscribers more of the Shares resulting in adverse claims parties to this Escrow Agreement, as to whether or demands being made in connection with the Escrowed Property, or in the event that not the Escrow Agent in good faith is in doubt will distribute any of the Escrow Shares, or as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the any other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding matter arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action Agreement or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possibleEscrow Shares, the defense of an inconvenient forum. The other parties hereby consent Escrow Agent will not be required to determine the controversy and grant need not make any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties distribution of the Escrow Agent shall be issued Shares but may retain the same without liability to any party until the rights of the parties to the dispute will have finally been determined by an arbitration panel as provided for in Section 2(c) of this Escrow Agreement or until it receives joint written instructions with respect thereto from the other parties hereto or on such parties' behalf unless Stockholder Representative and META. If a controversy of the type referred to in this Section 3 arises, the Escrow Agent may, but shall first have given its specific written consent thereto. The be under no duty whatsoever to, request that the parties commence arbitration proceedings as provided in Section 2(c) of this Escrow Agent hereby consents to Agreement for determination of the use of its name controversy, and the reference to the escrow arrangement in the Registration Statement and in the Prospectusparties will promptly comply with such request.
Appears in 1 contract
Samples: Escrow Agreement (Meta Group Inc)
Concerning the Escrow Agent. To induce (a) Each party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to act hereunderor described herein (including without limitation the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it is further agreed to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting (or, if so requested, refraining from acting) upon and in accordance with any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the Company proper person, and Placement Agent that:shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(ab) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrowed Property held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent's gross negligence, bad faith or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any agreement among such loss or damage and regardless of the other parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liable, except for its own gross negligence have no more or willful misconduct, and, except with respect less responsibility or liability on account of any action or omission of any book-entry depository or securities intermediary employed by the Escrow Agent than any such book-entry depository or securities intermediary has to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and except to the other parties hereto shall jointly and severally indemnify and hold harmless extent that such action or omission of any book-entry depository or securities intermediary was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses's own gross negligence, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence bad faith or willful misconduct) misconduct in the investment or reinvestment breach of the Escrowed Property, or any loss of interest incident to any such delaysthis Agreement.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine resign and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving at least thirty (30) days' prior written notice of such resignation to such effect to the Company Parent and the Placement Agent. Upon any Stockholders' Committee specifying a date upon which such termination or resignationresignation shall take effect; provided, however, that the Escrow Agent shall deliver continue to serve until its successor accepts the Escrowed Property to any Indemnity Escrow Fund. Upon receipt of such notice, a successor escrow agent jointly designated shall be appointed by Parent and the other parties hereto Stockholders' Committee, such successor escrow agent to become the Escrow Agent hereunder on the resignation date specified in writingsuch notice. If a written instrument of acceptance by a successor escrow agent shall not have been delivered to the Escrow Agent within thirty (30) days after the giving of such notice of resignation, or to the resigning Escrow Agent may at the expense of Parent petition any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) for the appointment of a successor escrow agent. Without limiting or altering the several liability of the Interested Parties to the Escrow Agent, Parent hereby agrees to bear the cost of said petition. Parent and the Stockholders' Committee acting jointly, may at any time substitute a new escrow agent by giving ten (including a court of competent jurisdiction10) or (ii) the day that is 30 days after the date of delivery: (A) days' prior written notice thereof to the Escrow Agent then acting and by Parents' paying all fees and expenses of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the such Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein accrued as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofdate.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed 7 Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinaboveherein above, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and the Placement Agent that:
(a) a. The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) b. This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this his Escrow Agreement.
(c) c. The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including including, without limitation limitation, any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) d. The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.the
Appears in 1 contract
Concerning the Escrow Agent. To induce 4.1. Duties and Responsibilities of the Escrow Agent Agent. The Escrow Agent's duties and responsibilities shall be subject to act hereunder, it is further agreed by the Company following terms and Placement Agent thatconditions:
(a) The Purchaser and the Company acknowledge and agree that the Escrow Agent (i) shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property responsible for or bound by, and shall not be required to invest inquire into whether either the Purchaser or the Company is entitled to receipt of the Company Documents and Purchaser Documents pursuant to any funds held hereunder except other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of are specifically assumed by the Escrow Agent with respect pursuant to any this Agreement; (iii) may rely on and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faithfaith to be genuine and to have been signed or presented by the proper person or party, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent ; (iv) may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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; (v) shall not be responsible for the identity, authority or rights of any person, firm or corporation executing or delivering or purporting to execute or deliver this Escrow Agreement or any document deposited hereunder or any endorsement thereon or assignment thereof; (vi) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vii) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Purchaser and the Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the fees of outside counsel and other costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Purchaser and Company under this Agreement and to no other person.
(c) The Purchaser and the Company jointly and severally agree to reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including counsel fees) incurred in connection with the performance of its duties and responsibilities hereunder not to exceed $1,500.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Purchaser and the Company. Prior to the effective date of the resignation as specified in such notice, the Purchaser and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Purchaser Documents to a substitute Escrow Agent selected by the Purchaser and the Company. If no successor Escrow Agent is named by the Purchaser and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Purchaser Documents with the clerk of any such court.
(e) The Escrow Agent may act pursuant to does not have and will not have any interest in the advice of counsel with respect to any matter relating to this Company Documents and Purchaser Documents, but is serving only as escrow agent, having only possession thereof.
(f) The Escrow Agreement and Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with such advice.
advice of counsel (f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall which counsel may be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(g) The This Agreement sets forth exclusively the duties of the Escrow Agent makes with respect to any and all matters pertinent thereto and no representation as to the validity, value, genuineness implied duties or the collectibility of any security or other document or instrument held by or delivered to itobligations shall be read into this Agreement.
(h) The Escrow Agent shall not be called upon permitted to advise act as counsel for the Purchaser or the Company, as the case may be, in any party dispute as to the wisdom disposition of selling the Company Documents and Purchaser Documents, in any other dispute among the Purchaser and the Company, whether or retaining or taking or refraining from any action with respect not the Escrow Agent is then holding the Company Documents and Purchaser Documents and continues to any securities or other property deposited act as the Escrow Agent hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by provisions of this Section 4.1 shall survive the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on or the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce 16.1 Concurrently with the execution of this Agreement, the Shareholders shall deposit with the Escrow Agent the share certificates representing all of the Shares owned by them duly endorsed in blank for transfer as well as all evidence of their Loan Claims duly assigned or endorsed in blank for transfer. The Escrow Agent is hereby authorized to hold and deal with same in accordance with the terms and conditions of this Agreement. As other Shares are issued to the Shareholders or additional Loan Claims accrue to them, the certificates representing said Shares and all evidence of Loan Claims shall be forthwith assigned or endorsed in blank for transfer and deposited with the Escrow Agent and shall be held and dealt with in accordance with the terms and conditions of this Agreement. Notwithstanding the deposit of the Shares and the evidence of Loan Claims with the Escrow Agent, at all times prior to the closing of transactions referred to herein, each Shareholder shall vote its Shares and be entitled to all dividends declared and paid thereon as well as to all other benefits that may accrue from said Shares from time to time and to all interest payable on the Loan Claims.
16.2 The Escrow Agent may, at any time, resign or be discharged from any further duties and responsibilities hereunder without liability of any kind other than for its intentional or gross fault, upon giving fifteen (15) days notice in writing to each of the Shareholders.
16.3 In the event of the resignation of the Escrow Agent herein named, the Shareholders shall agree within fifteen (15) days on the appointment of its successor. Such successor, immediately upon its appointment, shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Escrow Agent herein, without any further formality, and the Escrow Agent originally named and ceasing to act shall, upon payment of any amounts due to it hereunder, execute and deliver all such assignments and other instruments as may be necessary for the purpose of assuring to the new escrow agent full seizin in the premises and shall deliver the certificates representing the Shares and any evidences of Loan Claims that it may hold to the new escrow agent.
16.4 It is further agreed acknowledged by the Company and Placement parties that the Escrow Agent that:
(a) shall not incur any liabilities or responsibilities by reason of any matter or thing done or omitted to be done under or in relation to this Agreement, except for intentional or gross fault on its part. The Escrow Agent shall not be under any duty entitled to give the Escrowed Property held by it hereunder any greater degree of care than it gives reasonable remuneration for its own similar property services hereunder.
16.5 The Escrow Agent shall have no duties or responsibilities except those expressly set forth herein. It may consult with counsel and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent fully protected with respect to any and all matters pertinent heretoaction taken or omitted to be taken by it in good faith. No implied In the event that the Escrow Agent shall be uncertain as to its duties or obligations rights hereunder, or shall be read into this Escrow Agreement against receive instructions from any of the parties with respect to the evidence of Loan Claims, the Shares and/or any other documents or sums of money held by it in escrow pursuant to the provisions hereof which in the Escrow Agent. 's opinion are in conflict with the provisions hereof, it shall be entitled to refrain from taking any action other than to keep such evidence of Loan Claims, Shares and/or other documents or sums of money safely until it shall have been directed otherwise in writing by the Corporation and the Shareholders or by a decision of the arbitrators in the manner set forth in subsection 19.1.
16.6 The parties hereby agree to indemnify and hold harmless the Escrow Agent from and against any and all claims relating to anything done or omitted by the Escrow Agent in the course of the carrying out of the terms and conditions of this Agreement.
16.7 The Escrow Agent shall not be bound by the provisions of to enter into or maintain any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liablelitigation, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by until it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for been indemnified against all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)liabilities which might be reasonably incurred thereby.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent undersigned that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liable, except liable for any action or failure to act in its own gross negligence capacity as Escrow Agent hereunder unless such action or willful misconduct, and, except with respect failure to claims based upon such gross negligence or act shall constitute willful misconduct that are successfully asserted against on the part of the Escrow Agent, and the other parties hereto in which case there shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in be no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delaysindemnification obligations.
(dc) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faithunless he has actual knowledge to the contrary, 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.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except as provided in paragraph 6(b) above.
(fe) The Escrow Agent does not have any interest in the Escrowed Property Shares or Escrow Funds except as provided for herein for fees, as defined in the Agreement, or any other property deposited hereunder but is serving as escrow holder only. Any payments only and having only possession thereof, and is not charged with any duty or responsibility to determine the validity or enforceability of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agentsuch documents.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(if) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties resign as such by delivering the Shares and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property Funds to any successor escrow agent Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement thereafter. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to safe keep the Escrowed Property safe Shares and Escrow Funds and not make delivery or disposition thereof until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kg) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyShares or Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it otherwise determines that the Shares and Escrow Funds should take hereunderbe retained, then the Escrow Agent shall be entitled to may retain the Escrowed Property Shares and Escrow Funds until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Shares and Escrow Funds, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyShares and Escrow Funds, in which event case the Escrow Agent shall disburse promptly deliver the Escrowed Property Shares and Escrow Funds in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party reasonably satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(lh) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this This Escrow Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as if herein set forth). In addition, the Company agrees provided in paragraph (g) with respect to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made a resignation by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses Agent. Each entity signed represents and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit warrants that they have the full power and authority to bind the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree entity and that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on may rely upon such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectusrepresentation without further inquiry.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in writing pursuant to Section 2 of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement. The Escrow Agent's duties are ministerial in nature. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder.
(c) The Escrow Agent shall not be liableliable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder, except for its own gross negligence or willful misconduct, and, and except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the . The other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, taxes, damages and expenses, including reasonable attorneys' attorneys fees and disbursements, arising out of and or in connection with this Escrow AgreementAgreement including the legal costs and expenses of defending itself against any claim or liability in connection with its performance hereunder. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including or as a result of any liquidation of any such investment prior to its maturity, including, without limitation limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed PropertyFunds, or any loss of interest incident to any such delaysdelays or for the failure of the parties to give the Escrow Agent any instructions to invest or reinvest the Escrowed Funds or any earnings thereon.
(d) 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 of or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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.
(e) The Escrow Agent may act pursuant to consult with legal counsel of its own choosing at the advice expense of counsel the parties hereto with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with any advice of such advicecounsel.
(f) The Escrow Agent does not have any interest in the Escrowed Property Funds deposited hereunder but is serving as escrow holder onlyagent only and having only possession thereof. Any payments of income from the this Escrow Account Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D.identification, number certification, or non-resident W-8 forms for nonresident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other document documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver delivering the Escrowed Property Funds, subject to subparagraph (1) below, to any successor escrow agent Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Funds until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final and nonappealable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyFunds and of which the Escrow Agent has been put on written notice by PL, Salmon Creek or ScoPac, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Funds until the Escrow Agent shall have received (i) a final and non-appealable nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Funds or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers ScoPac directing delivery of the Escrowed PropertyFunds, in which event the Escrow Agent shall disburse the Escrowed Property Funds in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as The Escrow Agent as herein described, the Company agrees to pay the Escrow Agent shall be paid by Salmon Creek the fee to be set forth on Exhibit F hereto (made a part Schedule B hereto. All fees shall be paid in United States currency and payable in the United States at the office of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Agent. It is understood that the Escrow Agent in performance of Agent's fees may be adjusted from time to time to conform with its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)then current guidelines.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectusprospectuses, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' , behalf unless the Escrow Agent shall first have given its specific written consent thereto. .
(n) The Escrow Agent hereby consents shall not incur any liability for following the instructions herein contained or expressly provided for, or written instruction given by the parties hereto.
(o) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Escrow Agreement. If the Escrow Agent does elect to act it will do so only to the use extent that it is indemnified to its satisfaction against the cost and expense of such defense or initiation.
(p) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrowed Funds (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrowed Funds), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its name own choosing deems appropriate; and if the reference Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Escrow Agent shall not be liable to any of the escrow arrangement in the Registration Statement and in the Prospectusparties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liableliable under this Escrow Agreement, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agentmisconduct, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent and its directors, officers, agents and employees (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' ’ fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays. This Section 6(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder by the Company or the Placement Agent without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to the advice of counsel be selected and retained by it with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have have, for tax reporting purposes, any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. The parties hereto agree that, for tax reporting purposes, all interest or other income earned from the investment of the Escrowed Property or any portion thereof in any tax year (i) to the extent such interest or other income is distributed by the Escrow Agent to any person or entity pursuant to the terms of this Escrow Agreement during such tax year, shall be reported as allocated to such person or entity, and (ii) otherwise shall be reported as allocated to the Investors, in proportion to their respective Subscription Payment as set forth on the final Subscriber List.
(g) Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination certifications prior to the execution of this Escrow Agreement or the resignation of the Escrow AgentAgreement.
(gh) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(hi) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(ij) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination the Offering Termination Notice signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement AgentAgent not less than 60 days prior to the date when such resignation shall take effect. Upon the effectiveness of any such termination or resignation, the Escrow Agent shall promptly deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement except to the extent resulting from its gross negligence or willful misconduct. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is is: (A) 30 days after the date of delivery: (A) delivery to the Escrow Agent of the other parties' notice of termination Offering Termination Notice or (B) 60 days after the date of delivery to the other parties hereto of the Escrow Agent's ’s written notice of resignation. If at that the time of any termination or resignation the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be Agent may apply to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The jurisdiction for appointment of a successor Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein and shall, until such time as a means successor Escrow Agent is appointed, maintain the Escrowed Property pursuant to resolve disputes the terms and may rely without any liability upon the contents thereofconditions of this Escrow Agreement.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers Investors of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to refrain from taking any action and its sole obligation shall be to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers affected Investors, if any, directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as the performance by the Escrow Agent as of its duties herein described, the Company agrees to pay the Escrow Agent fees determined in accordance with the fee terms set forth on Exhibit F E hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances expenses of third parties incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, fees and expenses and disbursements of its outside counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent Each party agrees to and grant any such court jurisdiction over the persons of such parties and over the subject matter accept service of any such dispute and agree that delivery or mailing of process summons, complaint or other papers in connection with any such action or proceeding initial pleading made in the manner provided hereinabovefor the giving of notices in Section 5 hereof, provided that nothing in this Section 6(m) shall affect the right of any party to serve such summons, complaint or other initial pleading in such any other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's ’s name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' ’ behalf unless the Escrow Agent shall first have given its specific written consent theretothereto (which consent shall not be unreasonably withheld, conditioned or delayed). The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement (including all exhibits thereto) and the Placement Agency Agreement and in the Prospectusfilings made by the Company under the Securities Exchange Act of 1934, as amended, including the filing of this Escrow Agreement as an exhibit thereto.
(o) Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(p) In the event funds transfer instructions are given (other than in writing at the time of execution of this Escrow Agreement), whether in writing or by telecopy, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Exhibit F hereto, and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. Each funds transfer instruction shall be executed by an authorized signatory, a list of such authorized signatories is set forth on Exhibit F. The undersigned is authorized to certify that the signatories on Exhibit F are authorized signatories. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. The Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the Placement Agent or the Company to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even where its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary’s bank or an intermediary bank designated. The parties to this Escrow Agreement acknowledge that these security procedures are commercially reasonable.
Appears in 1 contract
Samples: Placement Agency Agreement (Fleetwood Enterprises Inc/De/)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) 4.1 The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives paid its own similar property customary fee as set forth in Appendix 1 attached hereto and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth reimbursed for all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and reasonable expenses, disbursements and advances (including reasonable attorneys' fees and expenses) incurred or made by it in performance of its duties hereunder. Such fee and such reasonable disbursements, arising out of expenses and in connection with this Escrow Agreement. Without limiting the foregoing, advances shall be paid by Purchaser upon request by the Escrow Agent shall and, in no event be liable in connection with its investment or reinvestment the case of any cash held such reimbursement, upon submission to Purchaser of a reasonably detailed itemized statement relating to the amounts to be reimbursed.
4.2 The Escrow Agent may resign and be discharged from its duties hereunder at any time by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays giving notice of such resignation to Purchaser and Seller specifying a date (not resulting from gross negligence or willful misconductless than 30 days after the giving of such notice) when such resignation shall take effect. Promptly after such notice, a successor escrow agent shall be appointed by mutual agreement of Purchaser and Seller, with such successor escrow agent to become Escrow Agent hereunder upon the resignation date specified in such notice. If Purchaser and Seller are unable to agree upon a successor escrow agent within 30 days after such notice, the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderappoint its successor, judgmentso long as such successor is a bank or trust company having capital, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofsurplus and undivided profits aggregating at least $100,000,000. The Escrow Agent shall continue to serve until its successor accepts the escrow agent appointment by written notice to the parties hereto and receives the Collateral. Purchaser and Seller may act agree at any time to substitute a new escrow agent by giving notice thereof to the Escrow Agent then acting.
4.3 The Escrow Agent undertakes to perform such duties as are specifically set forth herein. The Escrow Agent acting or refraining from acting in reliance good faith shall not be liable for any mistake of fact or error of judgment by it or for any acts or omissions by it of any kind unless caused by willful misconduct or gross negligence, and shall be entitled to rely, and shall be protected in doing so, upon (i) any written notice, instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice have been signed or receipt presented by the proper party or advice or make any statement or execute any document in connection with the provisions hereof has been parties duly authorized to do so.
, and (eii) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time which may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignationown choosing). If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means submitted to resolve disputes it hereunder and may shall be entitled in good faith to rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further questionnot responsible for any tax reporting.
(l) As consideration for its agreement 4.4 Purchaser and Seller agree to act as Escrow Agent as herein described, the Company agrees to pay indemnify the Escrow Agent the fee set forth on Exhibit F hereto (made and hold it harmless against any and all liabilities incurred by it hereunder as a part consequence of this Escrow Agreement as if herein set forth). In additiontheir respective actions, the Company and each further agrees jointly to reimburse indemnify the Escrow Agent and hold it harmless against any and all liabilities incurred by it hereunder which are not a consequence of their respective actions, except, in either case for all reasonable expenses, disbursements and advances liabilities incurred or made by the Escrow Agent in performance of resulting from its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)own willful misconduct or gross negligence.
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Bollinger Industries Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property duties, responsibilities and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties obligations of the Escrow Agent with respect shall be limited to any those expressly set forth herein and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Escrow Agreement against the Escrow Agentinferred or implied. The Escrow Agent shall not be bound by subject to, or required to comply with, any other agreement between or among any or all of the provisions of any agreement among the other parties hereto except or to which any of the parties hereto is a party, even though reference thereto maybe made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement.
(c) from any party hereto or any entity acting on its behalf. The Escrow Agent shall not be liablerequired to, except for and shall not, expend or risk any of its own gross negligence funds or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against otherwise incur any financial liability in the Escrow Agentperformance of any its duties hereunder.
(b) This Agreement is for the exclusive benefit of the parties hereto and their respective successors hereunder, and the shall not be deemed to give, either express or implied, any legal or equitable right, remedy, or claim to any other parties hereto shall jointly and severally indemnify and hold harmless entity or person whatsoever.
(c) 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 securities, monies, documents or other property deposited into the escrow account established hereunder (the "Escrow Property") (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of Escrow Property), the Escrow Agent is authorized to comply therewith in any manner as it or legal counsel of its own choosing deems appropriate, and if the Escrow Agent complies with any successor Escrow Agent) from and against any and all lossessuch judicial or administrative order, liabilitiesjudgment, claimsdecree, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out writ or other form of and in connection with this Escrow Agreement. Without limiting the foregoingjudicial or administrative process, the Escrow Agent shall in no event not be liable in connection with its investment or reinvestment of to any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, other parties hereto or any loss of interest incident to any other person or entity even though such delaysorder, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in good faith and the absence of gross negligence or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document from any party hereto or any entity acting on behalf of any party hereto, (ii) for any consequential, punitive or special damages, (iii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians, or (iv) for an amount in excess of the value of the Escrow Property, valued as of the date of deposit.
(e) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, convey or otherwise dispose of any Escrow Property for such advicepurpose.
(f) The Escrow Agent does not have As security for the due and punctual performance of any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject and all obligations to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D.hereunder, number certificationnow or hereafter arising, BAC, AmBev and the Company, individually and collectively, hereby pledge, assign and grant to the Escrow Agent a continuing security interest in, and a lien on, the Escrow Property and all distributions thereon or non-resident alien certifications. This paragraph additions thereto (f) and paragraph (c) whether such additions are the result of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement deposits by the parties hereto or the resignation investment of Escrow Property). The security interest of the Escrow AgentAgent shall at all times be valid, perfected and enforceable by the Escrow Agent against the parties hereto and all third parties in accordance with the terms of this Agreement.
(g) The Escrow Agent makes no representation may consult with legal counsel at the expense of BAC as to any matter relating to this Agreement, and the validity, value, genuineness or the collectibility of Escrow Agent shall not incur any security or other document or instrument held by or delivered to itliability in acting in good faith in accordance with any advice from such counsel.
(h) The Escrow Agent shall not be called upon to advise incur any party as to liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the wisdom control of selling or retaining or taking or refraining from any action with respect the Escrow Agent (including but not limited to any securities act or provision of any present or future law or regulation of any governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex or other property deposited hereunderwire or communication facility).
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignationUnless otherwise specifically set forth herein, the Escrow Agent shall deliver the Escrowed Property proceed as soon as practicable to collect any successor escrow agent jointly designated by the checks or other parties hereto in writing, or to collection items at any court of competent jurisdiction if no time deposited hereunder. All such successor escrow agent is agreed upon, whereupon the Escrow Agent collections shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) subject to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time usual collection practices or terms regarding items received by the Escrow Agent has for deposit or collection. The Escrow Agent shall not received a designation be required, or have any duty, to notify anyone of a successor escrow agentany payment or maturity under the terms of any instrument deposited hereunder, or to take any legal action to enforce payment of any check, note or security deposited hereunder or to exercise any right or privilege which may be afforded to the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt holder of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdictionsuch security.
(j) The Escrow Agent shall have no responsibility not be responsible in any respect for the contents form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any writing description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofsuch document, security or endorsement.
(k) BAC, AmBev and the Company, jointly and severally, shall be liable for and shall reimburse and indemnify the Escrow Agent and hold the Escrow Agent harmless from and against any and all claims, losses, liabilities, costs, damages or expenses (including reasonable attorneys' fees and expenses) (collectively, "Losses") arising from or in connection with or related to this Agreement or being the Escrow Agent hereunder (including but not limited to Losses incurred by the Escrow Agent in connection with its successful defense, in whole or in part, of any claim of gross negligence or willful misconduct, on its part); provided, however, that nothing contained herein shall require the Escrow Agent to be indemnified for Losses caused by its gross negligence or willful misconduct.
(l) In the event of any disagreement among ambiguity or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, uncertainty hereunder or in the event that any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in good faith is in doubt as its sole discretion, refrain from taking any action other than to what action it should take hereunderretain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by BAC and AmBev, which eliminates such ambiguity or uncertainty.
(m) In the event of any dispute between or conflicting claims by or among BAC, AmBev, the Company or any other person or entity with respect to any Escrow Property, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such Escrow Property so long as such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in anyway to the BAC, AmBev or the Company for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to retain refuse to act until, in its sole discretion, either (1) such conflicting or adverse claims or demands shall have been determined by a final award, order, judgment or decree of an arbitration panel or court of competent jurisdiction, which award, order, judgment or decree is not subject to appeal, or shall have been settled by agreement between the Escrowed Property until conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (2) the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property security or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party an indemnity satisfactory to the Escrow Agent it sufficient to the effect that said court order is final hold it harmless from and non-appealableagainst any and all Losses which it may incur by reason of so acting. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein describedmay, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In in addition, the Company agrees elect, in its sole discretion, to reimburse the Escrow Agent for all reasonable expensescommence an arbitration proceeding, disbursements interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and advances incurred or made by the Escrow Agent in performance of its duties hereunder expenses (including reasonable fees, expenses attorneys' fees and disbursements of its counsel).
(mexpenses) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting incurred in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims connection with respect to such action or proceeding shall be heard paid by, and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid deemed a joint and sufficient service thereof.
(n) No printed or other matter in any language (includingseveral obligation of BAC, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name AmBev and the reference to the escrow arrangement in the Registration Statement and in the ProspectusCompany.
Appears in 1 contract
Concerning the Escrow Agent. To induce (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to act hereunderor described herein (including without limitation the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it is further agreed to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the Company proper person, and Placement Agent that:shall have no responsibility to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(ab) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrowed Property held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any agreement among such loss or damage and regardless of the other parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except for its to the extent that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out in breach of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, or the propriety or validity in carrying out any sale of the service thereof. The Escrow Property permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the Escrow Agent may act in reliance upon or for any instrument third person or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may act pursuant be called for hereunder to be taken by the advice of counsel with respect to any matter relating to Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such adviceform, or (ii) passage of the applicable time period (or both, as applicable under the terms of this Agreement), as the case may be.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any All payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time hereunder shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdictionin U.S. dollars.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Merger Agreement (Tangoe Inc)
Concerning the Escrow Agent. To induce The Escrow Agent's duties and responsibilities shall be subject to the Escrow Agent to act hereunder, it is further agreed by the Company following terms and Placement Agent thatconditions:
(a) The parties acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether the Buyer is entitled to receipt of the Escrow Fund pursuant to any Instructions, where Escrow Agent has not received a Notice of Dispute within 20 business days after receipt of the Instructions; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Escrow Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the Escrowed Property property held by it Escrow Agent hereunder any greater degree of care than it Escrow Agent gives its own similar property property, but in no event less than a reasonable amount of care; and shall not (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be required to invest full and complete authorization and protection in respect of any funds held action taken, suffered or omitted by Escrow Agent hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestgood faith and in accordance with the opinion of such counsel.
(b) The parties acknowledges that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Escrow Agreement. Buyer agrees to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the fees of outside counsel and other costs and expenses of defending itself against any claim or liability under this Escrow Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Escrow Agreement.
(c) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to Buyer and Seller. Prior to the effective date of the resignation as specified in such notice, the parties will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Escrow Fund to a substitute Escrow Agent jointly selected by the parties. If no successor Escrow Agent is named by the parties, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Escrow Fund with the clerk of any such court.
(d) The Escrow Agent does not have and will not have any interest in the Escrow Fund, but is serving only as escrow agent, having only possession thereof.
(e) This Escrow Agreement expressly sets forth all exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No thereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) provisions of this Section 7 6 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility termination of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent undersigned that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liable, except liable for any action or failure to act in its own gross negligence capacity as Escrow Agent hereunder unless such action or willful misconduct, and, except with respect failure to claims based upon such gross negligence or act shall constitute willful misconduct that are successfully asserted against on the part of the Escrow Agent, and the other parties hereto in which case there shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in be no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delaysindemnification obligations.
(dc) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of or any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faithunless he has actual knowledge to the contrary, that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection Connection with the provisions hereof has been duly authorized to do so.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except as provided in paragraph 8(b) above.
(fe) The Escrow Agent does not have any interest in the Escrowed Property Debentures or Conversion Shares or any other property deposited hereunder but is serving as escrow holder only. Any payments only and having only possession thereof, and is not charged with any duty or responsibility to determine the validity or enforceability of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agentsuch documents.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(if) The Escrow Agent (and any successor escrow agentEscrow Agent) may at any time may be discharged from its duties and obligations hereunder resign as such by delivering the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property Debentures to any successor escrow agent Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement thereafter. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Debentures and not make delivery or disposition thereof until receipt of a designation of successor escrow agent Escrow Agent or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kg) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyDebentures, or in the event that the Escrow Agent in good faith is in doubt as to what action it otherwise determines that the Debentures should take hereunderbe retained, then the Escrow Agent shall be entitled to retain the Escrowed Property Debentures until the Escrow Agent shall have received (i) a final and non-appealable nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Debentures, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyDebentures, in which event case the Escrow Agent shall disburse promptly deliver the Escrowed Property Debentures in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party reasonably satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablenonappealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(lh) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this This Escrow Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as if herein set forth). In addition, the Company agrees provided in paragraph (g) with respect to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made a resignation by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agent.
(m) All parties hereto irrevocably (i) submit This Escrow Agreement may be modified by a writing signed by all the parties hereto, and no waiver hereunder shall be effective unless in a writing signed by the party to the jurisdiction of any New York State or federal court sitting in New York City be charged.
(j) PSI acknowledges and agrees that in any action dispute involving the Agreement, Debentures or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding Escrow Agent may represent Purchaser's interests and shall be heard and determined in such New York State or federal court and (iii) waive, not have a conflict of interest due to the fullest extent possible, the defense fact that Escrow Agent is also acting as an escrow agent pursuant to this Escrow Agreement and PSI hereby waives any right which it may have had to assert a conflict of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding interest in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofabsence of this Section 8(j).
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Escrow Agreement (Pacific Sands Inc)
Concerning the Escrow Agent. To induce the The Escrow Agent has been induced to act hereunder, it is further agreed accept its duties under this Escrow Agreement by the Company following terms and Placement Agent thatconditions:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, . Xxxxxxxx and the other parties hereto shall Acquisition jointly and severally shall indemnify and hold harmless the Escrow Agent (and any successor Escrow Agentescrow agent) from and against any and all lossesclaims, liabilities, claimslosses, actionsdamages, damages costs, taxes (including, without limitation, interest and expensespenalties thereon), including reasonable attorneys' fees (which term, as used in this Escrow Agreement shall include, without limitation, such Escrow Agent's normal hourly charges when acting as attorneys for the Escrow Agent) and disbursements, other expenses whatsoever arising out of and or in connection with this Escrow Agreement. Without limiting the foregoing, in no event shall the Escrow Agent shall in no event be liable in connection with for any matter or thing relating to its investment or reinvestment of any cash held by it hereunder in good faith, the Escrow Amount in accordance with the terms hereofprovisions of this Escrow Agreement, including without limitation limitation, any liability for loss of principal or failure to earn interest on the Escrow Amount, any claim that a higher rate of return could have been obtained, any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, Escrow Amount or any loss of principal or interest incident to any such delaysdelays or to the repurchase or sale of any certificate of deposit or Treasury Xxxx or Note.
(db) In the event of any disagreement among the parties to this Escrow Agreement, or among them or any one of them and any other person, resulting in adverse claims or demands being made in connection with the Escrow Amount, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on it (but nothing herein shall obligate the Escrow Agent so to do).
(c) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofthereof and irrespective of any facts the Escrow Agent may know or be deemed to know in any other capacity. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, assume that any person purporting to give any 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.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(jd) The Escrow Agent shall have no responsibility for duties or responsibilities except those expressly set forth in this Escrow Agreement. The Escrow Agent shall not have any obligations arising out of or be bound by the contents provisions of any writing of any third party contemplated herein as a means to resolve disputes and may rely other agreement, written or oral, including without any liability upon limitation the contents thereofAgreement.
(ke) In Xxxxxxxx and Acquisition acknowledge that the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made Escrow Agent has represented Xxxxxxxx and its affiliates in connection with the Escrowed PropertyAgreement and this Escrow Agreement and may continue to represent Xxxxxxxx or its affiliates in connection with the Agreement and this Escrow Agreement and the transactions contemplated pursuant to each such Agreement, or including, without limitation in the event of disputes arising thereunder. Xxxxxxxx and Acquisition expressly agree that the Escrow Agent shall not be precluded from or restricted in any manner whatsoever from representing Xxxxxxxx or any of its affiliates or otherwise acting as attorneys for Xxxxxxxx or any of its affiliates in any matter, including without limitation any court proceeding or other matter related to the Agreement or the transactions contemplated thereby, or this Escrow Agreement, or the Escrow Amount, whether or not there is a dispute between Xxxxxxxx and Acquisition with respect thereto. Xxxxxxxx and Acquisition hereby irrevocably consent to any such representation and waive any conflict or appearance of conflict with respect thereto.
(f) Acquisition shall report as taxable income any taxable income resulting from the investment of the Escrow Amount. At the option of the Escrow Agent, the account in which the Escrow Amount is held may indicate Acquisition's name and/or its Federal taxpayer I.D. number (13-397-0392). The Escrow Agent may deduct or withhold from the Escrow Amount or any payment hereunder any amount that it in good faith estimates is owed to the Internal Revenue Service or to any other taxing authority by either the Escrow Amount or by any party that has an interest in doubt as the Escrow Amount, and may in its discretion pay over to what action the Internal Revenue Service or such other taxing authority all or part of any such amount that it should take has deducted or withheld. To the extent that the Escrow Agent may become liable for the payment of taxes in respect of income resulting from the investment of the Escrow Amount, or any payment made hereunder, the Escrow Agent may pay such taxes from the Escrow Amount. Xxxxxxxx and Acquisition, jointly and severally, shall be entitled to retain the Escrowed Property until indemnify and hold harmless the Escrow Agent shall have received from and against any liability for taxes (iincluding, without limitation, any interest or penalties in respect thereof) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to any income or gain earned on or attributable to the Escrow Amount.
(g) All rights of indemnification provided for the Escrow Agent in this Escrow Agreement shall survive the resignation of the Escrow Agent, its replacement by a successor Escrow Agent, its delivery or deposit of the Escrow Amount in accordance with this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard the termination of this Escrow Agreement, and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The any other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereofcircumstances whatsoever.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Samples: Escrow Agreement (Startt Acquisition Inc & Startt Acquisition LLC)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) 4.1. The Escrow Agent shall not Agent’s duties hereunder may be under any duty to give the Escrowed Property held altered, amended, modified or revoked only by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent a writing signed by parties hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liablehave no duties, except for its own gross negligence responsibilities or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless obligations as the Escrow Agent (and any successor Escrow Agent) from and against any and all lossesexcept those which are expressly set forth herein, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this any modification or amendment hereof to which the Escrow AgreementAgent has consented in writing, and no duties, responsibilities or obligations shall be implied or inferred. Without limiting the foregoing, the Escrow Agent shall not be subject to, nor be required to comply with, or determine if any person or entity has complied with, the Subscription, Purchase and Investment Agreement or any other agreement between or among the parties hereto, even though reference thereto may be made in this Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Agreement;
4.2. The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying, acting or refraining from acting on any written notice, instruction, direction, request, instrument or other communication, paper or document believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties, and shall have no duty to inquire into or investigate the validity, accuracy or content of any thereof. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it hereunder as the Escrow Agent while acting in the absence of gross negligence, fraud or willful misconduct (as each is determined by a final, non-appealable judgment of a court of competent jurisdiction). In no event shall the Escrow Agent be (A) liable for acting in accordance with a notice, instruction, direction, request or other communication, paper or document from the Seller, Issuer or the Agent or (B) liable or responsible for special, punitive, indirect, consequential or incidental loss or damages of any kind whatsoever to any person or entity (including without limitation lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage.
4.3. The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
4.4. The Escrow Agent shall act hereunder as an escrow agent only and shall not be responsible or liable in any matter whatever for the sufficiency, collection, correctness, genuineness or validity of any revenues, cash, payments, securities, property, funds, investments, dividends, distributions, interest, income, earnings or other amounts deposited with or held by it or be liable in connection with its investment any respect on account of the identity, authorization or reinvestment rights of the parties executing or delivering or purporting to execute or deliver any cash held by it hereunder documents or papers deposited or called for thereunder in good faiththe absence of gross negligence, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence fraud or willful misconduct) in the investment or reinvestment misconduct (as each is determined by a final, non-appealable judgment of the Escrowed Property, or any loss a court of interest incident to any such delayscompetent jurisdiction).
(d) 4.5. The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument employ such legal counsel (who may be a counsel to a party hereto 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 an employee of the service thereof. The Escrow Agent) and other experts as the Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith deem necessary to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute any document properly advise the Escrow Agent in connection with the provisions hereof has been duly authorized Escrow Agent’s duties hereunder, and shall be fully protected in taken, suffering or omitting to do so.
(e) The Escrow Agent may act pursuant to take any action in reliance upon the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advicecounsel.
(f) 4.6. The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving Agent’s responsibilities as escrow holder only. Any payments of income from the Escrow Account agent hereunder shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide terminate if the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and other parties hereto. In the Placement Agent. Upon event of any such termination or resignation, such other parties shall appoint a successor Escrow Agent and the Escrow Agent shall deliver the Escrowed Property to such successor Escrow Agent any successor escrow agent jointly designated funds and other documents held by the other parties hereto in writingEscrow Agent. Any person or entity into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any person or entity resulting from any merger, conversion or consolidation to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon which the Escrow Agent shall be discharged a party, or any person or entity to which substantially all the stock transfer business of and from any and all the Escrow Agent may be transferred, shall automatically be the Escrow Agent under this Agreement without further obligations arising act.
4.7. If the Escrow Agent requires other or further instruments in connection with this Escrow Agreement. The termination Agreement or resignation of its obligations in respect hereto, the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other necessary parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting join in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with furnishing such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealableinstruments. The Escrow Agent shall act on such court order and legal opinion without further questionnot take instructions or directions except those given in accordance with this Agreement.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent undersigned that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) A. This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(c) B. The Escrow Agent shall not be liable, except liable for any action or failure to act in its own gross negligence capacity as Escrow Agent hereunder unless such action or willful misconduct, and, except with respect failure to claims based upon such gross negligence or act shall constitute willful misconduct that are successfully asserted against on the part of the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) C. The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, 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.
(e) D. The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) E. The Escrow Agent does not have any interest in the Escrowed Property Shares or any other property deposited hereunder but is serving as escrow holder onlyonly and having only possession thereof. Any payments of income from the Escrow Account Buyer shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide pay or reimburse the Escrow Agent with appropriate W-9 forms upon request for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) any transfer taxes relating to the Shares incurred in connection herewith and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of indemnify and hold harmless the Escrow AgentAgent from any amounts that it is obligated to pay in the way of transfer taxes.
(g) F. The Escrow Agent makes no representation representations as to the validity, value, value or genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) G. The Escrow Agent (and any successor escrow agentEscrow Agent) shall at any time may be discharged from its duties and obligations hereunder resign as such by delivering the delivery to it of notice of termination signed by both the Company Shares and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property funds to any successor escrow agent Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed uponjurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day that which is 30 days after the date of delivery: (A) to the Escrow Agent delivery of the other parties' its written notice of termination or (B) resignation to the other parties hereto of the Escrow Agent's written notice of resignationhereto. If at that time the Escrow Agent has not received a designation of a successor escrow agentEscrow Agent, the Escrow Agent's sole responsibility after that time shall be to keep safekeep the Escrowed Property safe Shares until receipt of a designation of successor escrow agent Escrow Agent, or a joint written disposition instruction by the other parties hereto or any enforceable a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) H. In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed PropertyShares, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property Shares until the Escrow Agent shall have received (i) a final and non-appealable nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Property Shares, or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed PropertyShares, in which event the Escrow Agent shall disburse the Escrowed Property Shares in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealablenonappealable. The Escrow Agent shall act on such court order and legal opinion without further question.
I. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors (lincluding successors by way of merger) As consideration for its agreement and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to act the benefit of any third party except as Escrow Agent as herein described, the Company agrees provided in paragraph (g) with respect to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made resignation by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agent.
(m) All J. This Agreement may be modified by a writing signed by all the parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreementhereto, (ii) agree that all claims with respect to such action or proceeding and no waiver hereunder shall be heard and determined effective unless in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued a writing signed by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents party to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectusbe charged.
Appears in 1 contract
Samples: Stock Purchase Agreement (Storm High Performance Sound Corp/Fl)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(aA) The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to Warrantholders and Selling Shareholders, specifying a date not less than five business days following the date of the notice when such resignation shall not take effect. Upon such notice, a successor escrow agent shall be under any duty jointly selected by a majority of the Warrantholders and a majority of the Selling Shareholders to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of become the Escrow Agent with respect hereunder upon the resignation date specified in such notice. If a majority of the Warrantholders and a majority of the Selling Shareholders are unable to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against agree upon a successor escrow agent within such five business days after the Escrow Agent. The Escrow Agent shall not be bound by the provisions date of any agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoingnotice, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofappoint its successor. The Escrow Agent shall continue to serve until its successor has accepted the escrow by executing a counterpart copy of this Agreement, whereupon the Escrow Agent shall have no further rights or obligations hereunder.
(B) The Escrow Agent undertakes to perform only such duties as are specifically set forth herein and may act conclusively rely on and shall be protected in reliance upon acting or refraining from acting on any written notice, instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice have been signed or receipt or advice or make any statement or execute any document in connection with presented by the provisions hereof has been proper party on parties duly authorized so to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder onlydo. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order have no obligation to determine if any notice given to any party other than the Escrow Agent has been timely given. It is acknowledged by Warrantholders and legal opinion without further questionSelling Shareholders that the Escrow Agent is bound only by the terms of this Agreement and that the Escrow Agent may, but shall not be required to, use its discretion with respect to any matter that is the subject of this Agreement or with respect to instructions received under this Agreement.
(lC) As consideration for its agreement to act as The Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent shall not be liable for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action taken or proceeding arising out omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith and in accordance with the advice of or relating to this Escrow Agreement, counsel (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as which counsel may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions of the Escrow Agent's name own choosing), and shall not be liable for any mistakes of fact or the rights, powers, errors of judgment or duties for any acts or omissions of any kind unless caused by its own willful misconduct or gross negligence.
(D) ICI shall indemnify and hold harmless the Escrow Agent shall be issued and its partners, employees and agents from and against any and all costs, damages, claims, liabilities, judgments and expenses (including reasonable attorneys' fees) incurred by it in connection with or arising out of the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use performance of its name obligations under this Agreement, including without limitation all such costs and the reference to the escrow arrangement in the Registration Statement and in the Prospectusexpenses (including reasonable attorneys' fees) incurred by it as contemplated by Section 6 hereof.
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