Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold the Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds. (b) Escrow Agent will not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith. (c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event will Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent. (d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law. (e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer and Sellers’ Representative agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following Business Day. (f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated. (g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity. (h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, but not required, to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C hereto, and Escrow Agent may rely upon the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer or Sellers’ Representative to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a person other than the intended beneficiary, or the transfer of funds to a bank other than the intended beneficiary’s bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonable.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Universal Logistics Holdings, Inc.), Stock Purchase Agreement (Universal Logistics Holdings, Inc.)
Duties and Liability of Escrow Agent. 5.1 The General Partner and the Partnership each represent that its correct Taxpayer Identification Number (a“TIN”) Escrow Agent undertakes to perform only such duties as are expressly assigned by the Internal Revenue Service or any other taxing authority is set forth herein and no duties will be implied. Escrow Agent has no fiduciary or discretionary duties in Schedule C. Upon execution of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation each party shall provide the Escrow Agent with a fully executed Internal Revenue Service Form W-8 or W-9. Any interest or other income earned under the Escrow Account shall be allocated and paid as provided herein and reported by the recipient to the Internal Revenue Service as having been so allocated and paid. Notwithstanding such written directions, the Escrow Agent shall report and, if required, withhold any taxes as it determines may be required by any law or regulation in effect at the time of the distribution. In the absence of timely direction, all proceeds of the Escrow Account shall be retained in the Escrow Account and reinvested from time to time by the Escrow Agent as provided in Section 3. In the event that any earnings remain undistributed at the end of any calendar year, Escrow Agent shall report to the Internal Revenue Service or such other agreement between authority such earnings as it deems appropriate or as required by any applicable law or all regulation or, to the extent consistent therewith, as directed in writing by the General Partner and the Partnership. In addition, Escrow Agent shall withhold any taxes it deems appropriate and shall remit such taxes to the appropriate authorities.
5.2 The Escrow Agent shall have the right to liquidate any investments held in the Escrow Account in order to provide funds necessary to make required payments under this Agreement. The Escrow Agent, in its capacity as escrow agent hereunder, shall not have any liability for any loss sustained as a result of any investment made pursuant to the Instructions of the parties hereto or as a result of any other persons even though reference thereto liquidation of any investment prior to its maturity or for the failure of the parties to give the Escrow Agent instructions to invest or reinvest the Escrow Account or any earnings thereon. Any such investment of the Escrow Account shall be made in compliance with Rule 15c2-4 of the Securities Exchange Act of 1934, as amended.
5.3 Any corporation into which the Escrow Agent in its individual capacity may be made herein merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent in its individual capacity shall be a party, or any corporation to which substantially all the corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under this Agreement without further act of the parties hereto.
5.4 Notwithstanding anything in this Agreement to the contrary, 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),except for any losses or damages caused by the gross negligence or willful misconduct of the Escrow Agent.
5.5 The duties and whether or not a copy obligations of the Escrow Agent shall be determined solely by the express provisions of this Agreement and shall be limited to the performance of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold the Escrow Funds in accordance with Escrow Agent’s customary practices duties and disbursement thereof in accordance with the terms obligations as are specifically set forth herein.
5.6 In performing any of its duties under this Agreement. , or upon the claimed failure to perform its duties hereunder, Escrow Agent shall not be responsible liable to anyone for any damages, losses or have any duty expenses which it may incur as a result of the Escrow Agent so acting, or failing to make any calculations act; provided, however, that the Escrow Agent shall be liable for damages arising out of its willful misconduct or gross negligence under this Agreement, or to determine when any calculation required under the provisions as determined by a court of this Agreement should be madecompetent jurisdiction. Accordingly, how it should be made or what it should be, or to confirm or verify Escrow Agent shall not incur any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(bi) Escrow Agent will not be liable for any action taken or omitted by it to be taken in good faith except to upon advice of its counsel or counsel for the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability Partnership given with respect to any questions relating to the acts duties and responsibilities of any such agent retained by the Escrow Agent hereunder or (ii) any action taken or omitted to be taken in good faith.
(c) Escrow Agent may rely reliance upon any noticedocument, instruction, request including any written notice or other instrumentinstructions provided for in this Agreement, not only as to its due execution, execution and to the validity and effectiveness, effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which the Escrow Agent believes shall in good faith believe to be genuine and genuine, to have been signed or presented by the proper person or parties purporting persons and to sign conform with the sameprovision of this Agreement. In no event will The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with such counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for (i) acting anything done, suffered or omitted in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, legal counsel selected good faith by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice or opinion of any such counsel. Buyer , accountants or other skilled persons.
5.7 Each of the Partnership, the General Partner and Sellers’ Representative Dealer-Manager hereby respectively agree to perform or procure indemnify and hold harmless the performance of all further acts and thingsEscrow Agent, and execute its directors, officers, agents and deliver such further documentsemployees (the “indemnitees”), as against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and counsel fees and disbursement which may be required incurred by law it resulting from any act or as omission of the Partnership, the General Partner or the Dealer-Manager; except, that if Escrow Agent may reasonably request shall be found guilty of willful misconduct or gross negligence under this Agreement by any court of competent jurisdiction, then, in connection with that event, Escrow Agent shall bear all such losses, claims, damages and expenses. The indemnity provided by this Section 5.7 shall survive the termination of this Agreement.
5.8 In the event that the Escrow Agent shall be uncertain as to its duties hereunder. When 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 is provided for herein and its sole obligation shall be to keep safely all property held in escrow until it shall be done on directed otherwise in writing by all of the other parties hereto or by a specified date that falls on final order or judgment of a day other than a Business Day, such action may be performed on the following Business Daycourt of competent jurisdiction.
(f) If any portion of 5.9 All fund transfer instructions must be given in writing, whether by facsimile, PDF or otherwise, and the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, but not required, authorized to seek confirmation of such instructions by telephone call-back to any person designated instruction by the instructing party person or persons whose specimen signature is designated on Schedule C D hereto, and Escrow Agent may rely upon .
5.10 It is understood that the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyerbeneficiary’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers number provided by Buyer or Sellers’ Representative either of the parties hereto to identify (ia) the beneficiary, (iib) the beneficiary’s bank, or (iiic) an intermediary bank. The Escrow Agent may apply any Escrow Deposit for any payment order it executes using any such identifying number, even when where its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s bank, or an intermediary bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonabledesignated.
Appears in 2 contracts
Samples: Escrow Agreement (ICON Equipment & Corporate Infrastructure Fund Fourteen, L.P.), Escrow Agreement (ICON Equipment & Corporate Infrastructure Fund Fourteen, L.P.)
Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will shall be implied. Escrow Agent has no fiduciary fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will shall not be construed as duties. Escrow Agent has shall have no liability under and no duty to inquire as to the provisions of any document agreement other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document agreement has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold shall be for the safekeeping of the Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement 7 should be made, how it should be made or what it should be, or to confirm confinn or verify any such calculation. Escrow Agent will shall not be charged with knowledge or notice of any fact or circumstance not specifically specifically set forth herein. This Agreement will shall terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will shall thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(b) Escrow Agent will not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event will Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer and Sellers’ Representative agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following Business Day.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, but not required, to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C hereto, and Escrow Agent may rely upon the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer or Sellers’ Representative to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a person other than the intended beneficiary, or the transfer of funds to a bank other than the intended beneficiary’s bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonable.
Appears in 1 contract
Samples: Merger Agreement (Bendele Phillip)
Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will shall be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will shall not be construed as duties. Escrow Agent has shall have no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons Governing Agreements, even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold shall be for the safekeeping and disbursement of the Escrow Funds Property in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation, unless expressly memorialized as Escrow Agent’s duty hereunder. Escrow Agent will shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This With respect to each Subject Trust, this Agreement will shall terminate upon the distribution of all the Subject Trust Escrow Funds Property pursuant to any applicable provision of this Agreement, and Escrow Agent will shall thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Subject Trust Escrow FundsProperty.
(b) Escrow Agent will shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer Depositor or Sellers’ Representativethe Subject Trusts. Escrow Agent may retain and act hereunder through agents, and will shall not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may conclusively rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign it and shall have no responsibility or duty to make inquiry as to or to determine the sametruth, accuracy or validity thereof (or any signature appearing thereon). In no event will shall Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ RepresentativeDepositor, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Subject Trust Escrow Funds as valued upon deposit Property then held by Escrow Agent with Escrow Agentrespect to a given Subject Trust.
(d) Escrow Agent will shall not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will shall not be obligated to take any legal action relating to or commence any proceeding in connection with the Escrow FundsProperty, this Agreement or the Purchase Agreement Governing Agreements, or to appear in, prosecute or defend any such legal action or proceeding, or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are Depositor is aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will shall have no liability to Buyer or Sellers’ RepresentativeDepositor, the Subject Trusts, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds Property escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreementany person, and will shall incur no liability and must shall be fully indemnified from any liability whatsoever in acting in good faith in accordance with the advice of such counsel. Buyer Depositor shall promptly pay, upon demand, the reasonable fees and Sellers’ Representative agree expenses of any such counsel. Depositor agrees to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with relating to its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following next ensuing Business Day.
(f) If any portion of the Escrow Funds Property is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree decree, process or process judgment of any court, or in case disbursement the payment, assignment, transfer, conveyance or delivery of Escrow Funds is any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to rely upon and comply with all writsany such writ, ordersorder, decrees decree, process or process judgment so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdictionjurisdiction or the need for appeal or other action; and if Escrow Agent relies upon or complies with any such writ, order, decree decree, process or processjudgment, it will shall not be liable to any of the parties hereto Depositor or to any other person or entity by reason of such compliance even if such order is writ, order, decree, process or judgment may be reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of Depositor and become pecuniarily interested in any other party hereto transaction in which Depositor may be interested, and contract and lend money to any other party hereto Depositor and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will shall preclude Escrow Agent from acting in any other capacity for any other party hereto Depositor or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information information, are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, authorized but shall not required, be required to seek confirmation of such instructions by telephone call-call- back to any the person or persons designated by the instructing party on Schedule C hereto, and 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 writing actually received and acknowledged by Escrow Xxxxxx Agent and will shall be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of BuyerDepositor’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may beofficers, which will officers shall include without limitation the titles of Chief Executive Corporate Trust Officer, President and President, Vice President, Treasurer, Managing Director and Managing Partner, as Escrow Agent may select. Such Executive Officer must officer shall deliver to Escrow Xxxxxx Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree Depositor agrees that Escrow Xxxxxx Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer or Sellers’ Representative Depositor to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. Escrow Agent may disburse any Escrow Property in accordance with any payment instruction it executes using any such identifying numbers, even when its their use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s bank or intermediary bankbank so designated. Buyer and Sellers’ Representative The Parties acknowledge that these optional security procedures are commercially reasonable.
Appears in 1 contract
Samples: Escrow Agreement
Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will shall be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will shall not be construed as duties. Escrow Agent has shall have no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold shall be for the safekeeping of the Escrow Funds in accordance with Escrow Agent’s customary practices practices, other ministerial obligations expressly set forth hereunder and disbursement thereof of the Escrow Funds in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth hereinherein or in any notice delivered to Escrow Agent in accordance with the terms hereof. This Agreement will shall terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will shall thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow FundsFunds (other than any residual tax reporting that may be required thereafter with respect to the final disbursement of funds).
(b) Escrow Agent will shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or negligence, willful misconduct or fraud (collectively, “Misconduct”) in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes in good faith to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event will shall Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent, except in the case of Escrow Agent’s or its affiliates’ or agents’ Misconduct.
(d) Escrow Agent will shall not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will shall not be obligated to take any legal action in connection with relating to the Escrow Funds, this Agreement or the Purchase Underlying Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liabilityaction. Buyer Xxxxx and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will shall have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law, except as may result from Escrow Agent’s its affiliates’ or agents’ Misconduct.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, . Xxxxx and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer and SellersXxxxxxx’ Representative agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with relating to its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following next ensuing Business Day.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or processprocess in good faith, it will shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will shall preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, authorized but shall not required, be required to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C C-1 or Schedule C-2 hereto, and Escrow Agent may rely upon the confirmation of anyone purporting to be the a person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Xxxxxx Agent and will shall be effective only after Escrow Agent has a reasonable opportunity to act on such changes, which in no event shall be more than two (2) Business Days. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule CC-1 or Schedule C-2, Escrow Agent is hereby authorized but will shall be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will shall include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must shall deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer Xxxxx and SellersXxxxxxx’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer or Sellers’ Representative to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s bank or an intermediary bankbank so designated. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonable.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold the Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(b) Escrow Agent will not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer Purchaser or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may conclusively rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign it and shall have no responsibility or duty to make inquiry as to or to determine the sametruth, accuracy or validity thereof (or any signature appearing thereon). In no event will Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer Purchaser or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer Purchaser and Sellers’ Representative Seller Parties are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer Purchaser or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at BuyerPurchaser’s and Sellers’ Representative’s cost, legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer Purchaser and Sellers’ Representative Seller Parties agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following Business Day.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, but not required, to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C hereto, and Escrow Agent may rely upon the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one (1) or more of BuyerPurchaser’s or Sellers’ Representativesuch Seller’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer Purchaser and Sellers’ Representative Seller Parties agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer Purchaser or Sellers’ Representative Seller Parties to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a transfer of funds to a person other than the intended beneficiary, beneficiary or the transfer of funds to a bank other than the intended beneficiary’s bank or intermediary bank. Buyer Purchaser and Sellers’ Representative Seller Parties acknowledge that these optional security procedures are commercially reasonable.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Virtual Cloud Technologies, Inc.)
Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will shall be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will shall not be construed as duties. Escrow Agent has shall have no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold shall be for the safekeeping of the Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will shall terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will shall thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(b) Escrow Agent will shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer Depositor or Sellers’ RepresentativeRecipient. Escrow Agent may retain and act hereunder through agents, and will shall not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event will shall Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer Depositor or Sellers’ RepresentativeRecipient, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will shall not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will shall not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Underlying Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer Depositor and Sellers’ Representative Recipient are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will shall have no liability to Buyer Depositor or Sellers’ RepresentativeRecipient, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at BuyerDepositor’s and Sellers’ RepresentativeRecipient’s cost, legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will shall incur no liability and must shall be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer Depositor and Sellers’ Representative Recipient agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following next ensuing Business Day.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, but not required, to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C hereto, and Escrow Agent may rely upon the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer or Sellers’ Representative to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a person other than the intended beneficiary, or the transfer of funds to a bank other than the intended beneficiary’s bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonable.not
Appears in 1 contract
Duties and Liability of Escrow Agent. (a) 5.1 Any interest or other income earned under this Agreement shall be allocated and paid as provided herein and reported by the recipient to the Internal Revenue Service as having been so allocated and paid.
5.2 The Escrow Agent undertakes shall have the right to perform only such duties as are expressly set forth herein and no duties will be impliedliquidate any investments held, in order to provide funds necessary to make required payments under this Agreement. The Escrow Agent has no fiduciary or discretionary duties in its capacity as escrow agent hereunder shall not have any liability for any loss sustained as a result of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as investment made pursuant to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all instructions of the parties hereto or as a result of any other persons even though reference thereto liquidation of any investment prior to its maturity or for the failure of the parties to give the Escrow Agent instructions to invest [or reinvest the Escrow Deposit] or any earnings thereon.
5.3 Any corporation into which the Escrow Agent in its individual capacity may be made herein and whether merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent in its individual capacity shall be a party, or any corporation to which substantially all the corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under this Agreement without further act.
5.4 Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not a copy limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold loss or damage and regardless of the form of action.
5.5 The duties and obligations of the Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with Agent shall be determined solely by the terms express provisions of this Agreement and shall be limited to the performance of such duties and obligations as are specifically set forth herein.
5.6 In performing any of its duties under this Agreement. , or upon the claimed failure to perform its duties hereunder, Escrow Agent shall not be responsible liable to anyone for any damages, losses, or have any duty expenses which it may incur as a result of the Escrow Agent so acting, or failing to make any calculations act; provided, however, Escrow Agent shall be liable for damages arising out of its willful default or gross negligence under this Agreement. Accordingly, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify Escrow Agent shall not incur any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(bi) Escrow Agent will not be liable for any action taken or omitted by it to be taken in good faith except to upon advice of its counsel or counsel for the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability Company given with respect to any questions relating to the acts duties and responsibilities of any such agent retained by the Escrow Agent hereunder or (ii) any action taken or omitted to be taken in good faith.
(c) Escrow Agent may rely reliance upon any noticedocument, instruction, request including any written notice or other instrumentinstructions provided for in this Agreement, not only as to its due execution, execution and to the validity and effectiveness, effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which the Escrow Agent believes shall in good faith believe to be genuine and genuine, to have been signed or presented by the proper person or parties purporting persons and to sign conform with the same. In no event will provision of this Agreement.
5.7 Each of the Company and Dealer-Manager hereby respectively agree to indemnify and hold harmless the Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon against any instructionand all losses, noticeclaims, demanddamages, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representativeliabilities and expenses, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits)without limitation, even reasonable costs of investigation and counsel fees and disbursement which may be incurred by it resulting from any act or omission of the Company or the Escrow Agent; except, that if Escrow Agent has been advised shall be found guilty of willful default or gross negligence under this Agreement by any court of competent jurisdiction, then, in that event, Escrow Agent shall bear all such losses, claims, damages and expenses. The indemnity provided by this Section 5.7 shall survive the likelihood termination of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agentthis Agreement.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with 5.8 If a dispute ensues between the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, legal counsel selected by it in the event of any dispute or question parties hereto as to the construction proper investment or distribution of Escrow Deposits and earnings thereon sufficient, in the discretion of Escrow Agent, to require it doing so, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction within the provisions hereof State of New York, including the Supreme Court of Westchester County, New York, all money or property in its hands under the terms of any other agreement this Agreement and to file an appropriate proceeding to obtain a court order or of its duties hereunder, or relating to any dispute involving declaratory judgment interpreting this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting resolving such dispute in accordance with herewith and determining the advice of such counsel. Buyer and Sellers’ Representative agree to perform or procure the performance proper disposition of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following Business Day.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise escrow funds subject to this Agreement. Upon Escrow Agent's completion of all acts called for in any writ, order, decree such order or process declaratory judgment including distribution in full of any court, or in case disbursement of all Escrow Funds is stayed or enjoined by any court orderDeposits and earnings thereon, Escrow Agent is authorized, in its sole discretion, shall thereupon to respond as it deems appropriate or to comply with be discharged from all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent further duties under this Agreement. Nothing herein will preclude Any such legal action may be brought in any court as Escrow Agent from acting shall determine to have jurisdiction thereof. The Company and Dealer-Manager shall indemnify Escrow Agent against its court costs and attorneys' fees incurred in any other capacity for any other party hereto or for any other person or entityfiling such legal proceedings.
(h) 5.9 In the event instructions, including funds transfer instructions, address change or change in contact information instructions are given to Escrow Agent (other than in writing at the time of execution of this the Agreement), whether in writing, by facsimile telecopier or otherwise, the Escrow Agent is authorized, but not required, authorized to seek confirmation of such instructions instruction by telephone call-back to any the person or persons designated by the instructing party on in Schedule C 2 hereto, and the Escrow Agent may rely upon the confirmation 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 a writing actually received and acknowledged by the Escrow Agent. The parties to this Agreement acknowledge that such security procedure is commercially reasonable.
5.10 It is understood that the Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers number provided by Buyer or Sellers’ Representative either of the parties hereto to identify (i1) the beneficiary, (ii2) the beneficiary’s 's bank, or (iii3) 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 when where its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s 's bank, or an intermediary bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonabledesignated.
Appears in 1 contract
Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold the Escrow Funds Fund in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds Fund pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow FundsFund.
(b) Escrow Agent will not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer Purchaser or Sellers’ RepresentativeSeller. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may conclusively rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign it and shall have no responsibility or duty to make inquiry as to or to determine the sametruth, accuracy or validity thereof (or any signature appearing thereon). In no event will Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.6 7 2602403v32602403v7
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow FundsFund, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer Purchaser and Sellers’ Representative Seller are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer Purchaser or Sellers’ RepresentativeSeller, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds Fund escheat by operation of law.
. (e) Escrow Agent may consult, at BuyerPurchaser’s and Sellers’ RepresentativeSeller’s cost, legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer Purchaser and Sellers’ Representative Seller agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following Business Day.
(f) If any portion of the Escrow Funds Fund is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds Fund is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.. 7 7 2602403v32602403v7
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, but not required, to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C B hereto, and Escrow Agent may rely upon the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Xxxxxx Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule CB, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of BuyerPurchaser’s or Sellers’ RepresentativeSeller’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer Purchaser and Sellers’ Representative Seller agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer Purchaser or Sellers’ Representative Seller to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a transfer of funds to a person other than the intended beneficiary, beneficiary or the transfer of funds to a bank other than the intended beneficiary’s bank or intermediary bank. Buyer Purchaser and Sellers’ Representative Seller acknowledge that these optional security procedures are commercially reasonable. 11.
Appears in 1 contract
Samples: Asset Purchase Agreement (Comstock Holding Companies, Inc.)
Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no other duties will be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold hold, safekeep and disburse the Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(b) Escrow Agent will not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes in good faith to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event will Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed in good faith by Escrow Xxxxxx Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole sole, good faith judgment may expose it to potential expense or liability. Buyer Xxxxx and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s costcost (which Buyer and Sellers’ Representative agree between themselves shall be split equally between Buyer, on one hand, and Sellers, on the other hand), one outside legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer Xxxxx and SellersXxxxxxx’ Representative agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following Business Day.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon on it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile electronic delivery or otherwise, Escrow Agent is authorized, but not required, to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C hereto, and Escrow Agent may rely in good faith upon the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Xxxxxx Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President Xxxxx and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and SellersXxxxxxx’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer or Sellers’ Representative to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a transfer of funds to a person other than the intended beneficiary, beneficiary or the transfer of funds to a bank other than the intended beneficiary’s bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonable.
Appears in 1 contract
Samples: Stock Purchase Agreement (EnerSys)
Duties and Liability of Escrow Agent. 5.1 The Manager and the Company each represent that its correct Taxpayer Identification Number (a“TIN”) Escrow Agent undertakes to perform only such duties as are expressly assigned by the Internal Revenue Service or any other taxing authority is set forth herein and no duties will be impliedin Schedule 1. Escrow Agent has no fiduciary or discretionary duties Upon execution of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation each party shall provide the Escrow Agent with a fully executed Internal Revenue Service Form W-8 or W-9. Any interest or other income earned under the Escrow Account shall be allocated and paid as provided herein and reported by the recipient to the Internal Revenue Service as having been so allocated and paid. Notwithstanding such written directions, the Escrow Agent shall report and, if required, withhold any taxes as it determines may be required by any law or regulation in effect at the time of the distribution. In the absence of timely direction, all proceeds of the Escrow Account shall be retained in the Escrow Account and reinvested from time to time by the Escrow Agent as provided in Section 3. In the event that any earnings remain undistributed at the end of any calendar year, Escrow Agent shall report to the Internal Revenue Service or such other agreement between authority such earnings as it deems appropriate or as required by any applicable law or all regulation or, to the extent consistent therewith, as directed in writing by the Manager and the Company. In addition, Escrow Agent shall withhold any taxes it deems appropriate and shall remit such taxes to the appropriate authorities.
5.2 The Escrow Agent shall have the right to liquidate any investments held in the Escrow Account in order to provide funds necessary to make required payments under this Agreement. The Escrow Agent, in its capacity as escrow agent hereunder, shall not have any liability for any loss sustained as a result of any investment made pursuant to the Instructions of the parties hereto or as a result of any other persons even though reference thereto liquidation of any investment prior to its maturity or for the failure of the parties to give the Escrow Agent instructions to invest or reinvest the Escrow Account or any earnings thereon. Any such investment of the Escrow Account shall be made in compliance with Rule 15c2-4 of the Securities Exchange Act of 1934, as amended.
5.3 Any corporation into which the Escrow Agent in its individual capacity may be made herein merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent in its individual capacity shall be a party, or any corporation to which substantially all the corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under this Agreement without further act of the parties hereto.
5.4 Notwithstanding anything in this Agreement to the contrary, 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), except for any losses or damages caused by the gross negligence or willful misconduct of the Escrow Agent.
5.5 The duties and whether or not a copy obligations of the Escrow Agent shall be determined solely by the express provisions of this Agreement and shall be limited to the performance of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold the Escrow Funds in accordance with Escrow Agent’s customary practices duties and disbursement thereof in accordance with the terms obligations as are specifically set forth herein.
5.6 In performing any of its duties under this Agreement. , or upon the claimed failure to perform its duties hereunder, Escrow Agent shall not be responsible liable to anyone for any damages, losses or have any duty expenses which it may incur as a result of the Escrow Agent so acting, or failing to make any calculations act; provided, however, that the Escrow Agent shall be liable for damages arising out of its willful misconduct or gross negligence under this Agreement, or to determine when any calculation required under the provisions as determined by a court of this Agreement should be madecompetent jurisdiction. Accordingly, how it should be made or what it should be, or to confirm or verify Escrow Agent shall not incur any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(bi) Escrow Agent will not be liable for any action taken or omitted by it to be taken in good faith except to upon advice of its counsel or counsel for the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability Company given with respect to any questions relating to the acts duties and responsibilities of any such agent retained by the Escrow Agent hereunder or (ii) any action taken or omitted to be taken in good faith.
(c) Escrow Agent may rely reliance upon any noticedocument, instruction, request including any written notice or other instrumentinstructions provided for in this Agreement, not only as to its due execution, execution and to the validity and effectiveness, effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which the Escrow Agent believes shall in good faith believe to be genuine and genuine, to have been signed or presented by the proper person or parties purporting persons and to sign conform with the sameprovision of this Agreement. In no event will The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with such counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for (i) acting anything done, suffered or omitted in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, legal counsel selected good faith by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice or opinion of any such counsel. Buyer , accountants or other skilled persons.
5.7 Each of the Company, the Manager and Sellers’ Representative Dealer-Manager hereby respectively agree to perform or procure indemnify and hold harmless the performance of all further acts and thingsEscrow Agent, and execute its directors, officers, agents and deliver such further documentsemployees (the “indemnitees”), as against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and counsel fees and disbursement which may be required incurred by law it resulting from any act or as omission of the Company, the Manager or the Dealer-Manager; except, that if Escrow Agent may reasonably request shall be found guilty of willful misconduct or gross negligence under this Agreement by any court of competent jurisdiction, then, in connection with that event, Escrow Agent shall bear all such losses, claims, damages and expenses. The indemnity provided by this Section 5.7 shall survive the termination of this Agreement.
5.8 In the event that the Escrow Agent shall be uncertain as to its duties hereunder. When 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 is provided for herein and its sole obligation shall be to keep safely all property held in escrow until it shall be done on directed otherwise in writing by all of the other parties hereto or by a specified date that falls on final order or judgment of a day other than a Business Day, such action may be performed on the following Business Daycourt of competent jurisdiction.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) 5.9 In the event instructions, including funds transfer instructions, address change or change in contact information instructions are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, the Escrow Agent is authorized, but not required, authorized to seek confirmation of such instructions instruction by telephone call-back to any the person or persons designated by the instructing party on Schedule C 2 hereto, and the Escrow Agent may rely upon the confirmation 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 a writing actually received and acknowledged by the Escrow Agent. The parties to this Agreement acknowledge that such security procedure is commercially reasonable.
5.10 It is understood that the Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyerbeneficiary’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers number provided by Buyer or Sellers’ Representative either of the parties hereto to identify (ia) the beneficiary, (iib) the beneficiary’s bank, or (iiic) an intermediary bank. The Escrow Agent may apply any of the Escrow Deposits for any payment order it executes using any such identifying number, even when where its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s bank, or an intermediary bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonabledesignated.
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Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will shall be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will shall not be construed as duties. Escrow Agent has shall have no liability under and no duty to inquire as to the provisions of any document agreement other than this Agreement, including without limitation any other agreement between any or all of the parties hereto Parties or any other persons even though reference thereto may be made herein and whether or not a copy of such document agreement has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold shall be for the safekeeping of Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth hereinherein or in a notice delivered pursuant to Section 14. This Agreement will shall terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will shall thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(b) Escrow Agent will shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s fraud, bad faith, gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole direct cause of any loss to Buyer Purchaser, the Seller Representative, or Sellers’ Representativethe Securityholders. Escrow Agent may retain and act hereunder through its agents, and will not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the proper person or parties purporting to sign the sameparties. In no event will shall Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agentaction.
(d) Escrow Agent will shall not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will shall not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Underlying Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liabilityaction. Buyer Purchaser and Sellers’ the Seller Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will shall have no liability to Buyer Purchaser or Sellers’ the Seller Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will and, except to the extent that doing so would constitute fraud or bad faith of Escrow Agent, shall incur no liability and must shall be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer Purchaser and Sellers’ the Seller Representative agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with performing its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following next ensuing Business Day.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those or which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract with and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will shall preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including but not limited to funds transfer instructions, address change instructions or change in contact information change instructions are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, authorized but shall not required, be required to seek confirmation of such instructions by telephone call-back to any the person or persons designated by the instructing party on Schedule C hereto, and 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 writing actually received and acknowledged by Escrow Agent and will shall be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in on Schedule C, Escrow Agent is hereby authorized but will shall be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of BuyerPurchaser’s or Sellers’ the Seller Representative’s executive officers (“Executive Officers”), as the case may be, which will shall include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must shall deliver to Escrow Agent a fully fully-executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer Purchaser and Sellers’ the Seller Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this SectionSection 9(i). Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer Purchaser or Sellers’ the Seller Representative to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s bank or an intermediary bankbank so designated, provided that Escrow Agent shall use its reasonable best efforts to recover any misdirected funds. Buyer Purchaser and Sellers’ the Seller Representative acknowledge that these optional security procedures are commercially reasonable.
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Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will shall be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will shall not be construed as duties. Escrow Agent has shall have no liability under and no duty to inquire as to the provisions of any document agreement other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document agreement has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold shall be for the safekeeping of the Escrow Funds Property in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will shall terminate upon the distribution of all the Escrow Funds Property pursuant to any applicable provision of this Agreement, and Escrow Agent will shall thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow FundsProperty.
(b) Escrow Agent will shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence negligence, fraud or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer Depositor or Sellers’ RepresentativeGC Advisors. Escrow Agent may retain and act hereunder through agents, and will shall not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event will shall Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer Depositor or Sellers’ RepresentativeGC Advisors, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds Property as valued upon deposit with Escrow Agent.
(d) Escrow Agent will shall not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will shall not be obligated to take any legal action in connection with the Escrow FundsProperty, this Agreement or the Purchase Underlying Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer Depositor and Sellers’ Representative GC Advisors are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will shall have no liability to Buyer Depositor or Sellers’ RepresentativeGC Advisors, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds Property escheat by operation of law.
(e) Escrow Agent may consult, at BuyerDepositor’s and Sellers’ RepresentativeGC Advisors’s cost, legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will shall incur no liability and must shall be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer Depositor and Sellers’ Representative GC Advisors agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following next ensuing Business Day.
(f) If any portion of the Escrow Funds Property is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds Property is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those or which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(gh) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will shall preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(hi) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, authorized but shall not required, be required to seek confirmation of such instructions by telephone call-back to any the person or persons designated by the instructing party on Schedule C hereto, and 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 writing actually received and acknowledged by Escrow Agent and will shall be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will shall be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of BuyerDepositor’s or Sellers’ RepresentativeGC Advisors’s executive officers (“Executive Officers”), as the case may be, which will shall include the titles of Manager, Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must shall deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer Depositor and Sellers’ Representative GC Advisors agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer Depositor or Sellers’ Representative GC Advisors to identify (ia) the beneficiary, (iib) the beneficiary’s bank, or (iiic) an intermediary bank, even when its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s bank or an intermediary bankbank so designated. Buyer Depositor and Sellers’ Representative GC Advisors acknowledge that these optional security procedures are commercially reasonable.
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Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold the Escrow Funds Escrowed Shares in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds Escrowed Shares pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow FundsEscrowed Shares.
(b) Escrow Agent will not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ the Seller Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may conclusively rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign it and shall have no responsibility or duty to make inquiry as to or to determine the sametruth, accuracy or validity thereof (or any signature appearing thereon). In no event will Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ the Seller Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds Escrowed Shares as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow FundsEscrowed Shares, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ the Seller Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ the Seller Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds Escrowed Shares escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ the Seller Representative’s cost, legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer and Sellers’ the Seller Representative agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following Business Day.
(f) If any portion of the Escrow Funds Escrowed Shares is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement distribution of Escrow Funds the Escrowed Shares is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, but not required, to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C hereto, with respect to Buyer, or to Seller Representative, and Escrow Agent may rely upon the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule CC or Section 15, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ the Seller Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer or Sellers’ the Seller Representative to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a transfer of funds to a person other than the intended beneficiary, beneficiary or the transfer of funds to a bank other than the intended beneficiary’s bank or intermediary bank. Purchaser and Seller. Buyer and Sellers’ the Seller Representative acknowledge that these optional security procedures are commercially reasonable.
Appears in 1 contract
Samples: Escrow Agreement (Northern Pacific Growth Investment Advisors, LLC)
Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold the Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(b) Escrow Agent will not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer Purchaser or Sellers’ RepresentativeSeller. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event will Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer Purchaser or Sellers’ RepresentativeSeller, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profitsprofits or diminution in value), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer Purchaser and Sellers’ Representative Seller are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer Purchaser or Sellers’ RepresentativeSeller, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at BuyerPurchaser’s and Sellers’ RepresentativeSeller’s costcost (to be shared equally), legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer Purchaser and Sellers’ Representative Seller agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following Business Day.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, but not required, to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C attached hereto, and Escrow Agent may rely upon the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule CC attached hereto, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of BuyerPurchaser’s or Sellers’ RepresentativeSeller’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer Purchaser and Sellers’ Representative Seller agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer Purchaser or Sellers’ Representative Seller to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a transfer of funds to a person other than the intended beneficiary, beneficiary or the transfer of funds to a bank other than the intended beneficiary’s bank or intermediary bank. Buyer Purchaser and Sellers’ Representative Seller acknowledge that these optional security procedures are commercially reasonable.
Appears in 1 contract
Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold the Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(b) Escrow Agent will not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s fraud, gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ RepresentativeSeller. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event will Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ RepresentativeSeller, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole reasonable judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative Seller are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ RepresentativeSeller, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Upon providing at least two Business Days’ prior notice to Buyer and Seller, Escrow Agent may consult, at Buyer’s and Sellers’ RepresentativeSeller’s costexpense (but only if such expenses are reasonable and documented, and provided that, without limiting the joint and several nature of their obligations to Escrow Agent, Buyer and Seller agree between themselves that each will be responsible to the other for 50% of Escrow Agent’s expenses under this Section), legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer and Sellers’ Representative Seller agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following Business Day.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole reasonable, good faith discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, but not required, to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C hereto, and Escrow Agent may rely upon the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ RepresentativeSeller’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative Seller agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer or Sellers’ Representative Seller to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a transfer of funds to a person other than the intended beneficiary, beneficiary or the transfer of funds to a bank other than the intended beneficiary’s bank or intermediary bank. Buyer and Sellers’ Representative Seller acknowledge that these optional security procedures are commercially reasonable.
Appears in 1 contract
Duties and Liability of Escrow Agent. 5.1 The Manager, the Dealer-Manager and the Company each represent that its correct Taxpayer Identification Number (a“TIN”) Escrow Agent undertakes to perform only such duties as are expressly assigned by the Internal Revenue Service or any other taxing authority is set forth herein and no duties will be impliedin Schedule 1. Escrow Agent has no fiduciary or discretionary duties Upon execution of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation each party shall provide the Escrow Agent with a fully executed Internal Revenue Service Form W-8 or W-9. Any interest or other income earned under the Escrow Account shall be allocated and paid as provided herein and reported by the recipient to the Internal Revenue Service as having been so allocated and paid. Notwithstanding such written directions, the Escrow Agent shall report and, if required, withhold any taxes as it determines may be required by any law or regulation in effect at the time of the distribution. In the absence of timely direction, all proceeds of the Escrow Account shall be retained in the Escrow Account and reinvested from time to time by the Escrow Agent as provided in Section 3. In the event that any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the Internal Revenue Service or such other agreement between authority such earnings as it deems appropriate or as required by any applicable law or all regulation or, to the extent consistent therewith, as directed in writing by the Manager and the Company. In addition, the Escrow Agent shall withhold any taxes it deems appropriate and shall remit such taxes to the appropriate authorities.
5.2 The Escrow Agent shall have the right to liquidate any investments held in the Escrow Account in order to provide funds necessary to make required payments under this Agreement. The Escrow Agent, in its capacity as escrow agent hereunder, shall not have any liability for any loss sustained as a result of any investment made pursuant to the Instructions of the parties hereto or as a result of any other persons even though reference thereto liquidation of any investment prior to its maturity or for the failure of the parties to give the Escrow Agent instructions to invest or reinvest the Escrow Account or any earnings thereon. Any such investment of the Escrow Account shall be made in compliance with Rule 15c2-4 of the Securities Exchange Act of 1934, as amended.
5.3 Any corporation into which the Escrow Agent in its individual capacity may be made herein 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 escrow business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under this Agreement without further act of the parties hereto.
5.4 Notwithstanding anything in this Agreement to the contrary, 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), except for any losses or damages caused by the gross negligence or willful misconduct of the Escrow Agent.
5.5 The duties and whether or not a copy obligations of the Escrow Agent shall be determined solely by the express provisions of this Agreement and shall be limited to the performance of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold the Escrow Funds in accordance with Escrow Agent’s customary practices duties and disbursement thereof in accordance with the terms obligations as are specifically set forth herein.
5.6 In performing any of its duties under this Agreement. , or upon the claimed failure to perform its duties hereunder, Escrow Agent shall not be responsible liable to anyone for any damages, losses or have any duty expenses which it may incur as a result of the Escrow Agent so acting, or failing to make any calculations act; provided, however, that the Escrow Agent shall be liable for damages arising out of its willful misconduct or gross negligence under this Agreement, or to determine when any calculation required under the provisions as determined by a court of this Agreement should be madecompetent jurisdiction. Accordingly, how it should be made or what it should be, or to confirm or verify Escrow Agent shall not incur any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(bi) Escrow Agent will not be liable for any action taken or omitted by it to be taken in good faith except to upon advice of its counsel or counsel for the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability Company given with respect to any questions relating to the acts duties and responsibilities of any such agent retained by the Escrow Agent hereunder or (ii) any action taken or omitted to be taken in good faith.
(c) Escrow Agent may rely reliance upon any noticedocument, instruction, request including any written notice or other instrumentinstructions provided for in this Agreement, not only as to its due execution, execution and to the validity and effectiveness, effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which the Escrow Agent believes shall in good faith believe to be genuine and genuine, to have been signed or presented by the proper person or parties purporting persons and to sign conform with the sameprovision of this Agreement. In no event will The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with such counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for (i) acting anything done, suffered or omitted in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, legal counsel selected good faith by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice or opinion of any such counsel. Buyer , accountants or other skilled persons.
5.7 Each of the Company, the Manager and Sellers’ Representative Dealer-Manager hereby respectively agree to perform or procure indemnify and hold harmless the performance of all further acts and thingsEscrow Agent, and execute its directors, officers, agents and deliver such further documentsemployees (the “indemnitees”), as against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and counsel fees and disbursement which may be required incurred by law it resulting from any act or as omission of the Company, the Manager or the Dealer-Manager; except, that if Escrow Agent may reasonably request shall be found guilty of willful misconduct or gross negligence under this Agreement by any court of competent jurisdiction, then, in connection with that event, Escrow Agent shall bear all such losses, claims, damages and expenses. The indemnity provided by this Section 5.7 shall survive the termination of this Agreement.
5.8 In the event that the Escrow Agent shall be uncertain as to its duties hereunder. When 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 is provided for herein and its sole obligation shall be to keep safely all property held in escrow until it shall be done on directed otherwise in writing by all of the other parties hereto or by a specified date that falls on final order or judgment of a day other than a Business Day, such action may be performed on the following Business Daycourt of competent jurisdiction.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) 5.9 In the event instructions, including funds transfer instructions, address change or change in contact information instructions are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, the Escrow Agent is authorized, but not required, authorized to seek confirmation of such instructions instruction by telephone call-back to any the person or persons designated by the instructing party on Schedule C 2 hereto, and the Escrow Agent may rely upon the confirmation confirmations of anyone purporting to be the person or persons so designated. The undersigned is authorized to certify that the signatories on Schedule 2 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 parties to this Agreement acknowledge that such security procedure is commercially reasonable.
5.10 It is understood that the Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyerbeneficiary’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers number provided by Buyer or Sellers’ Representative either of the parties hereto to identify (ia) the beneficiary, (iib) the beneficiary’s bank, or (iiic) an intermediary bank. The Escrow Agent may apply any of the Escrow Deposits for any payment order it executes using any such identifying number, even when where its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s bank, or an intermediary bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonabledesignated.
Appears in 1 contract
Duties and Liability of Escrow Agent. 5.1 The Manager and the Company each represent that its correct Taxpayer Identification Number (a“TIN”) Escrow Agent undertakes to perform only such duties as are expressly assigned by the Internal Revenue Service or any other taxing authority is set forth herein and no duties will be impliedin Schedule 1. Escrow Agent has no fiduciary or discretionary duties Upon execution of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation each party shall provide the Escrow Agent with a fully executed Internal Revenue Service Form W-8 or W-9. Any interest or other income earned under the Escrow Account shall be allocated and paid as provided herein and reported by the recipient to the Internal Revenue Service as having been so allocated and paid. Notwithstanding such written directions, the Escrow Agent shall report and, if required, withhold any taxes as it determines may be required by any law or regulation in effect at the time of the distribution. In the absence of timely direction, all proceeds of the Escrow Account shall be retained in the Escrow Account and reinvested from time to time by the Escrow Agent as provided in Section 3. In the event that any earnings remain undistributed at the end of any calendar year, Escrow Agent shall report to the Internal Revenue Service or such other agreement between authority such earnings as it deems appropriate or as required by any applicable law or all regulation or, to the extent consistent therewith, as directed in writing by the Manager and the Company. In addition, Escrow Agent shall withhold any taxes it deems appropriate and shall remit such taxes to the appropriate authorities.
5.2 The Escrow Agent shall have the right to liquidate any investments held in the Escrow Account in order to provide funds necessary to make required payments under this Agreement. The Escrow Agent, in its capacity as escrow agent hereunder, shall not have any liability for any loss sustained as a result of any investment made pursuant to the Instructions of the parties hereto or as a result of any other persons even though reference thereto liquidation of any investment prior to its maturity or for the failure of the parties to give the Escrow Agent instructions to invest or reinvest the Escrow Account or any earnings thereon. Any such investment of the Escrow Account shall be made in compliance with Rule 15c2-4 of the Securities Exchange Act of 1934, as amended.
5.3 Any corporation into which the Escrow Agent in its individual capacity may be made herein merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent in its individual capacity shall be a party, or any corporation to which substantially all the corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under this Agreement without further act of the parties hereto.
5.4 Notwithstanding anything in this Agreement to the contrary, 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), except for any losses or damages caused by the gross negligence or willful misconduct of the Escrow Agent.
5.5 The duties and whether or not a copy obligations of the Escrow Agent shall be determined solely by the express provisions of this Agreement and shall be limited to the performance of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold the Escrow Funds in accordance with Escrow Agent’s customary practices duties and disbursement thereof in accordance with the terms obligations as are specifically set forth herein.
5.6 In performing any of its duties under this Agreement. , or upon the claimed failure to perform its duties hereunder, Escrow Agent shall not be responsible liable to anyone for any damages, losses or have any duty expenses which it may incur as a result of the Escrow Agent so acting, or failing to make any calculations act; provided, however, that the Escrow Agent shall be liable for damages arising out of its willful misconduct or gross negligence under this Agreement, or to determine when any calculation required under the provisions as determined by a court of this Agreement should be madecompetent jurisdiction. Accordingly, how it should be made or what it should be, or to confirm or verify Escrow Agent shall not incur any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(bi) Escrow Agent will not be liable for any action taken or omitted by it to be taken in good faith except to upon advice of its counsel or counsel for the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability Company given with respect to any questions relating to the acts duties and responsibilities of any such agent retained by the Escrow Agent hereunder or (ii) any action taken or omitted to be taken in good faith.
(c) Escrow Agent may rely reliance upon any noticedocument, instruction, request including any written notice or other instrumentinstructions provided for in this Agreement, not only as to its due execution, execution and to the validity and effectiveness, effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which the Escrow Agent believes shall in good faith believe to be genuine and genuine, to have been signed or presented by the proper person or parties purporting persons and to sign conform with the sameprovision of this Agreement. In no event will The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with such counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for (i) acting anything done, suffered or omitted in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, legal counsel selected good faith by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice or opinion of any such counsel. Buyer , accountants or other skilled persons.
5.7 Each of the Company, the Manager and Sellers’ Representative Dealer-Manager hereby respectively agree to perform or procure indemnify and hold harmless the performance of all further acts and thingsEscrow Agent, and execute its directors, officers, agents and deliver such further documentsemployees (the “indemnitees”), as against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and counsel fees and disbursement which may be required incurred by law it resulting from any act or as omission of the Company, the Manager or the Dealer-Manager; except, that if Escrow Agent may reasonably request shall be found guilty of willful misconduct or gross negligence under this Agreement by any court of competent jurisdiction, then, in connection with that event, Escrow Agent shall bear all such losses, claims, damages and expenses. The indemnity provided by this Section 5.7 shall survive the termination of this Agreement.
5.8 In the event that the Escrow Agent shall be uncertain as to its duties hereunder. When 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 is provided for herein and its sole obligation shall be to keep safely all property held in escrow until it shall be done on directed otherwise in writing by all of the other parties hereto or by a specified date that falls on final order or judgment of a day other than a Business Day, such action may be performed on the following Business Daycourt of competent jurisdiction.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) 5.9 In the event instructions, including funds transfer instructions, address change or change in contact information instructions are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, the Escrow Agent is authorized, but not required, authorized to seek confirmation of such instructions instruction by telephone call-back to any the person or persons designated by the instructing party on Schedule C 2 hereto, and the Escrow Agent may rely upon the confirmation 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 a writing actually received and acknowledged by the Escrow Agent. The parties to this Agreement acknowledge that such security procedure is commercially reasonable.
5.10 It is understood that the Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers number provided by Buyer or Sellers’ Representative either of the parties hereto to identify (ia) the beneficiary, (iib) the beneficiary’s 's bank, or (iiic) an intermediary bank. The Escrow Agent may apply any of the Escrow Deposits for any payment order it executes using any such identifying number, even when where its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s 's bank, or an intermediary bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonabledesignated.
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Duties and Liability of Escrow Agent. (a) 5.1 Any interest or other income earned under the Escrow Agreement shall be allocated and paid as provided herein and reported by the recipient to the Internal Revenue Service as having been so allocated and paid.
5.2 The Escrow Agent undertakes shall have the right to perform only such duties as are expressly set forth herein and no duties will be impliedliquidate any investments held, in order to provide funds necessary to make required payments under this Agreement. The Escrow Agent has no fiduciary or discretionary duties in its capacity as escrow agent hereunder shall not have any liability for any loss sustained as a result of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as investment made pursuant to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all Instructions of the parties hereto or as a result of any other persons even though reference thereto liquidation of any investment prior to its maturity or for the failure of the parties to give the Escrow Agent instructions to invest or reinvest the Escrow Fund or any earnings thereon.
5.3 Any corporation into which the Escrow Agent in its individual capacity may be made herein and whether merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent in its individual capacity shall be a party, or any corporation to which substantially all the corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under this Agreement without farther act.
5.4 Anything in this agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not a copy limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold loss or damage and regardless of the form of action.
5.5 The duties and obligations of the Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with Agent shall be determined solely by the terms express provisions of this Agreement and shall be limited to the performance of such duties and obligations as are specifically set forth herein.
5.6 In performing any of its duties under this Agreement. , or upon the claimed failure to perform its duties hereunder, Escrow Agent shall not be responsible liable to anyone for any damages, losses, or have any duty expenses which it may incur as a result of The Escrow Agent so acting, or failing to make any calculations act; provided, however, Escrow Agent shall be liable for damages arising out of its willful default or gross negligence under this Agreement. Accordingly, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify Escrow Agent shall not incur any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(bi) Escrow Agent will not be liable for any action taken or omitted by it to be taken in good faith except to upon advice of its counsel or counsel for the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability Company given with respect to any questions relating to the acts duties and responsibilities of any such agent retained by the Escrow Agent hereunder or (ii) any action taken or omitted to be taken in good faith.
(c) Escrow Agent may rely reliance upon any noticedocument, instruction, request including any written notice or other instrumentinstructions provided for in this Agreement, not only as to its due execution, execution and to the validity and effectiveness, effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which the Escrow Agent believes shall in good faith believe to be genuine and genuine, to have been signed or presented by the proper person or parties purporting persons and to sign conform with the same. In no event will provision of this Agreement.
5.7 Each of the Company and Dealer-Manager hereby respectively agree to indemnify and hold harmless the Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon against any instructionand all losses, noticeclaims, demanddamages, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representativeliabilities and expenses, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits)without limitation, even reasonable costs of investigation and counsel fees and disbursement which may be incurred by it resulting from any act or omission of the Company or the Escrow Agent; except, that if Escrow Agent has been advised shall be found guilty of willful default or gross negligence under this Agreement by any court of competent jurisdiction, then, in that event, Escrow Agent shall bear all such losses, claims, damages and expenses. The indemnity provided by this Section 5.7 shall survive the likelihood termination of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agentthis Agreement.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with 5.8 If a dispute ensues between the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, legal counsel selected by it in the event of any dispute or question parties hereto as to the construction proper investment or distribution of Escrow Deposits and earnings thereon sufficient, in the discretion of Escrow Agent, to require it doing so, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction within the provisions hereof state of New York, including the Supreme Court of Westchester County, New York, all money or property in its hands under the terms of any other agreement this Agreement and to file an appropriate proceeding to obtain a court order or of its duties hereunder, or relating to any dispute involving declaratory judgment interpreting this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting resolving such dispute in accordance with herewith and determining the advice of such counsel. Buyer and Sellers’ Representative agree to perform or procure the performance proper disposition of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following Business Day.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise escrow funds subject to this Agreement. Upon Escrow Agent's completion of all acts called for in any writ, order, decree such order or process declaratory judgment including distribution in full of any court, or in case disbursement of all Escrow Funds is stayed or enjoined by any court orderDeposits and earnings thereon, Escrow Agent is authorized, in its sole discretion, shall thereupon to respond as it deems appropriate or to comply with be discharged from all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent further duties under this Agreement. Nothing herein will preclude Any such legal action may be brought in any court as Escrow Agent from acting shall determine to have jurisdiction thereof. The Company and Dealer-Manager shall indemnify Escrow Agent against its court costs and attorneys' fees incurred in any other capacity for any other party hereto or for any other person or entityxxxxxx such legal proceedings.
(h) 5.9 In the event instructions, including funds transfer instructions, address change or change in contact information instructions are given to Escrow Agent (other than in writing at the time of execution of this the Agreement), whether in writing, by facsimile telecopier or otherwise, the Escrow Agent is authorized, but not required, authorized to seek confirmation of such instructions instruction by telephone call-back to any the person or persons designated by the instructing party on an Schedule C 2 hereto, and the Escrow Agent may rely upon the confirmation 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 a writing actually received and acknowledged by the Escrow Agent. The parties to this Agreement acknowledge that such security procedure is commercially reasonable.
5.10 It is understood that the Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers number provided by Buyer or Sellers’ Representative either of the parties hereto to identify (i1) the beneficiary, (ii2) the beneficiary’s 's bank, or (iii3) 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 when where its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s 's bank, or an intermediary bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonabledesignated.
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Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold the Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(b) Escrow Agent will not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event will Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer and Sellers’ Representative agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following Business Day.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, but not required, to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C hereto, and Escrow Agent may rely upon the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer or Sellers’ Representative to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a person other than the intended beneficiary, or the transfer of funds to a bank other than the intended beneficiary’s bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonable.
Appears in 1 contract
Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will shall be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will shall not be construed as duties. Escrow Agent has no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold shall be for the Escrow Funds safekeeping of the Surety Amount in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will shall terminate upon the distribution of all the Escrow Funds Surety Amount pursuant to any applicable provision of this Agreement, and Escrow Agent will shall thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow FundsSurety Amount.
(b) Escrow Agent will shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer Developer or Sellers’ RepresentativeTown. Escrow Agent may retain and act hereunder through agents, agents and will shall not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event will shall Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer Developer or Sellers’ RepresentativeTown, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds Surety Amount as valued upon deposit with Escrow Agent.
(d) Escrow Agent will shall not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes earthquakes, or any other circumstance beyond its control. Escrow Agent will shall not be obligated to take any legal action in connection with relating to the Escrow FundsSurety Amount, this Agreement Agreement, or the Purchase Agreement MOU or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer Developer and Sellers’ Representative Town are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will shall have no liability to Buyer Developer or Sellers’ RepresentativeTown, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds Surety Amount escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will shall incur no liability and must shall be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. Buyer Developer and Sellers’ Representative Town agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with relating to its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Daybusiness day (Monday-Friday, except for legal public U.S. holidays), such action may be performed on the following Business Daynext ensuing business day.
(f) If any portion of the Escrow Funds Surety Amount is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds Surety Amount is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will shall preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, authorized but shall not required, be required to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C A hereto, and Escrow Agent may rely upon the confirmation of anyone purporting to be the a person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Xxxxxx Agent and will shall be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule CA, Escrow Agent is hereby authorized but will shall be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of BuyerDeveloper’s or Sellers’ RepresentativeTown’s executive officers (“Executive Officers”), as the case may be, which will shall include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must shall deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer Developer and Sellers’ Representative Town agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer Developer or Sellers’ Representative Town to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s bank or an intermediary bankbank so designated. Buyer Developer and Sellers’ Representative Town acknowledge that these optional security procedures are commercially reasonable.
Appears in 1 contract
Samples: Memorandum of Understanding
Duties and Liability of Escrow Agent. 5.1 The Dealer-Manager and the Company each represent that its correct Taxpayer Identification Number (a"TIN") assigned by the Internal Revenue Service or any other taxing authority is set forth in Schedule 1. Upon execution of this agreement, each party shall provide the Escrow Agent undertakes to perform only such duties with a fully executed W-8 or W-9 Internal Revenue Service form. Any interest or other income earned under the Escrow Agreement shall be allocated and paid as are expressly set forth provided herein and no duties will be impliedreported by the recipient to the Internal Revenue Service as having been so allocated and paid. Notwithstanding such written directions, Escrow Agent has no fiduciary shall report and, as required withhold any taxes as it determines may be required by any law or discretionary duties regulation in effect at the time of the distribution. In the absence of timely direction, all proceeds of the Escrow Agent as provided in Section 3. In the event that any earnings remain undistributed at the end of any kind. Escrow Agent’s permissive rights will not be construed as duties. calendar year, Escrow Agent has no liability under and no duty to inquire as shall report to the provisions Internal Revenue Service or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation or, to the extent consistent therewith, as directed in writing by the Dealer-Manager and the Company. In addition, Escrow Agent shall withhold any taxes it deems appropriate and shall remit such taxes to the appropriate authorities.
5.2 The Escrow Agent shall have the right to liquidate any investments held, in order to provide funds necessary to make required payments under this Agreement. The Escrow Agent in its capacity as escrow agent hereunder shall not have any liability for any loss sustained as a result of any document other than this Agreement, including without limitation any other agreement between any or all investment made pursuant to the Instructions of the parties hereto or as a result of any other persons even though reference thereto liquidation of any investment prior to its maturity or for the failure of the parties to give the Escrow Agent instructions to invest or reinvest the Escrow Fund or any earnings thereon.
5.3 Any corporation into which the Escrow Agent in its individual capacity may be made herein and whether merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent in its individual capacity shall be a party, or any corporation to which substantially all the corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under this Agreement without farther act.
5.4 Anything in this agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not a copy limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold loss or damage and regardless of the form of action.
5.5 The duties and obligations of the Escrow Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with Agent shall be determined solely by the terms express provisions of this Agreement and shall be limited to the performance of such duties and obligations as are specifically set forth herein.
5.6 In performing any of its duties under this Agreement. , or upon the claimed failure to perform its duties hereunder, Escrow Agent shall not be responsible liable to anyone for any damages, losses, or have any duty expenses which it may incur as a result of The Escrow Agent so acting, or failing to make any calculations act; provided, however, Escrow Agent shall be liable for damages arising out of its willful default or gross negligence under this Agreement, or to determine when any calculation required under the provisions as determined by a court of this Agreement should be madecompetent jurisdiction. Accordingly, how it should be made or what it should be, or to confirm or verify Escrow Agent shall not incur any such calculation. Escrow Agent will not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Funds.
(bi) Escrow Agent will not be liable for any action taken or omitted by it to be taken in good faith except to upon advice of its counsel or counsel for the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer or Sellers’ Representative. Escrow Agent may retain and act hereunder through agents, and will not be responsible for or have any liability Company given with respect to any questions relating to the acts duties and responsibilities of any such agent retained by the Escrow Agent hereunder or (ii) any action taken or omitted to be taken in good faith.
(c) Escrow Agent may rely reliance upon any noticedocument, instruction, request including any written notice or other instrumentinstructions provided for in this Agreement, not only as to its due execution, execution and to the validity and effectiveness, effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which the Escrow Agent believes shall in good faith believe to be genuine and genuine, to have been signed or presented by the proper person or parties purporting persons and to sign conform with the sameprovision of this Agreement. In no event will The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or though agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for (i) acting anything done, suffered or omitted in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer or Sellers’ Representative, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Escrow Agent will not be obligated to take any legal action in connection with the Escrow Funds, this Agreement or the Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s and Sellers’ Representative’s cost, legal counsel selected good faith by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever in acting in accordance with the advice or opinion of any such counsel. Buyer , accountants or other skilled persons.
5.7 Each of the Company and Sellers’ Representative Dealer-Manager hereby respectively agree to perform or procure indemnify and hold harmless the performance Escrow Agent and its directors, officers, agents and employees (the "indemittees"), against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of all further acts investigation and things, counsel fees and execute and deliver such further documents, as disbursement which may be required incurred by law it resulting from any act or as omission of the Company or the Escrow Agent; except, that if Escrow Agent may reasonably request shall be found guilty of willful default or gross negligence under this Agreement by any court of competent jurisdiction, then, in connection with that event, Escrow Agent shall bear all such losses, claims, damages and expenses. The indemnity provided by this Section 5.7 shall survive the termination of this Agreement. In the event that the Escrow Agent shall be uncertain as to its duties hereunder. When or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action is provided for herein and its sole obligation shall be to keep safely all property held in escrow until it shall be done on directed otherwise in writing by all of the other parties hereto or by a specified date that falls on final order or judgement of a day other than a Business Day, such action may be performed on the following Business Daycourt of competent jurisdiction.
(f) If any portion of the Escrow Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of Escrow Funds is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) 5.9 In the event instructions, including funds transfer instructions, address change or change in contact information instructions are given to Escrow Agent (other than in writing at the time of execution of this the Agreement), whether in writing, by facsimile telecopier or otherwise, the Escrow Agent is authorized, but not required, authorized to seek confirmation of such instructions instruction by telephone call-back to any the person or persons designated by the instructing party on an Schedule C 2 hereto, and the Escrow Agent may rely upon the confirmation 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 a writing actually received and acknowledged by the Escrow Agent. The parties to this Agreement acknowledge that such security procedure is commercially reasonable.
5.10 It is understood that the Escrow Agent and will be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule C, Escrow Agent is hereby authorized but will be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of Buyer’s or Sellers’ Representative’s executive officers (“Executive Officers”), as the case may be, which will include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer and Sellers’ Representative agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers number provided by Buyer or Sellers’ Representative either of the parties hereto to identify (i1) the beneficiary, (ii2) the beneficiary’s 's bank, or (iii3) 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 when where its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s 's bank, or an intermediary bank or intermediary bank. Buyer and Sellers’ Representative acknowledge that these optional security procedures are commercially reasonabledesignated.
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Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will shall be implied. Escrow Agent has no fiduciary or discretionary duties of any kind. Escrow Agent’s permissive rights will shall not be construed as duties. Escrow Agent has shall have no liability under and no duty to inquire as to the provisions of any document other than this Agreement, including without limitation the Underlying Agreement or any other agreement between any or all of the parties hereto or any other persons even though reference thereto may be made herein and whether or not a copy of such document has been provided to Escrow Agent. Escrow Agent’s sole responsibility is to hold shall be for the Escrow safekeeping of the Deposit Funds in accordance with Escrow Agent’s customary practices and disbursement thereof in accordance with the terms of this Agreement. Escrow Agent shall not be responsible for or have any duty to make any calculations under this Agreement, or to determine when any calculation required under the provisions of this Agreement should be made, how it should be made or what it should be, or to confirm or verify any such calculation. Escrow Agent will shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. This Agreement will shall terminate upon the distribution of all the Escrow Deposit Funds pursuant to any applicable provision of this Agreement, and Escrow Agent will shall thereafter have no further obligation or liability whatsoever with respect to this Agreement or the Escrow Deposit Funds.
(b) Escrow Agent will shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction the Bankruptcy Court determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with its material breach of this Agreement was the sole cause of any loss to Buyer Buyers’ Parent or Sellers’ RepresentativeParent. Escrow Agent may retain and act hereunder through agents, and will shall not be responsible for or have any liability with respect to the acts of any such agent retained by Escrow Agent in good faith.
(c) Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event will shall Escrow Agent be liable for (i) acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document believed by Escrow Agent to have been created by or on behalf of Buyer Buyers’ Parent or Sellers’ RepresentativeParent, (ii) incidental, indirect, special, consequential or punitive damages or penalties of any kind (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action or (iii) any amount greater than the value of the Escrow Deposit Funds as valued upon deposit with Escrow Agent.
(d) Escrow Agent will shall not be responsible for delays or failures in its performance hereunder resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire, communication line failures, computer viruses, attacks or intrusions, power failures, earthquakes or any other circumstance beyond its control. Except as otherwise set forth in this Agreement, Escrow Agent will shall not be obligated to take any legal action in connection with the Escrow Deposit Funds, this Agreement or the Purchase Underlying Agreement or to appear in, prosecute or defend any such legal action or to take any other action that in Escrow Agent’s sole judgment may expose it to potential expense or liability. Buyer and Sellers’ Representative are aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. Escrow Agent will have no liability to Buyer or Sellers’ Representative, their respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the Escrow Funds escheat by operation of law.
(e) Escrow Agent may consult, at Buyer’s Buyers’ Parent and Sellers’ RepresentativeParent’s cost, legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving this Agreement, and will shall incur no liability and must shall be fully indemnified from any liability whatsoever reasonably incurred in acting in accordance with the advice of such counsel. Buyer counsel provided, however, that Buyers’ Parent and Sellers’ Representative Parent agree, solely as between Buyers’ Parent and Sellers’ Parent, that all such amounts shall be paid one-half by Buyers’ Parent and one-half by Sellers’ Parent; provided further, however, that the Escrow Agent shall not be entitled to the payment or reimbursement of any such costs incurred to the extent determined by a court of competent jurisdiction to have resulted from the fraud, gross negligence or willful misconduct of the Escrow Agent. Buyers’ Parent and Sellers’ Parent agree to perform or procure the performance of all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. When any action is provided for herein to be done on or by a specified date that falls on a day other than a Business Day, such action may be performed on the following next ensuing Business Day.
(f) If any portion of the Escrow Deposit Funds is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any courtthe Bankruptcy Court, or in case disbursement of Escrow Deposit Funds is stayed or enjoined by any court orderthe Bankruptcy Court, Escrow Agent is authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process so entered or issued, including but not limited to those which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies upon or complies with any such writ, order, decree or process, it will shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even if such order is reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend money to any other party hereto and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein will shall preclude Escrow Agent from acting in any other capacity for any other party hereto or for any other person or entity.
(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is authorized, authorized but shall not required, be required to seek confirmation of such instructions by telephone call-back to any person designated by the instructing party on Schedule C heretoapplicable Representative, and Escrow Agent may rely upon the confirmation of anyone purporting to be the person so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and will shall be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If Escrow Agent is unable to contact any of the designated representatives identified in Schedule CRepresentatives, Escrow Agent is hereby authorized but will shall be under no duty to seek confirmation of such instructions by telephone call-back to any one or more of BuyerBuyers’ Parent’s or Sellers’ RepresentativeParent’s executive officers (“Executive Officers”), as the case may be, which will shall include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may select. Such Executive Officer must shall deliver to Escrow Agent a fully executed incumbency certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. Buyer Buyers’ Parent and Sellers’ Representative Parent agree that Escrow Agent may at its option record any telephone calls made pursuant to this Section. Escrow Agent in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer Buyers’ Parent or Sellers’ Representative Parent to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result in a person other than the intended beneficiarybeneficiary being paid, or the transfer of funds to a bank other than the intended beneficiary’s bank or an intermediary bankbank so designated. Buyer Buyers’ Parent and Sellers’ Representative Parent acknowledge that these optional security procedures are commercially reasonable.
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Samples: Asset Purchase Agreement
