Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties. (b) The Company warrants to and agrees with the Escrow Agent that, to its knowledge, there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and that no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds or any part thereof. (c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties so long as such controversy shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until: (i) the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such parties and the Subscription Proceeds and the Escrow Agent has received written instructions as to disbursement thereof or a copy of such court order; or (ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder. (d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconduct. (e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker of Record. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder. (f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished. (g) The Company and Broker of Record jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees and agents and to save the Escrow Agent and each of its officers, directors, employees and agents harmless from and against any and all Claims (as hereunder defined) and Losses (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct. For the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the Escrow Agent or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part: (i) the acts or omissions of the Company and Broker of Record, or (ii) the appointment of the Escrow Agent under this Agreement, or (iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct.
Appears in 6 contracts
Samples: Subscription Escrow Agreement (RSE Archive, LLC), Subscription Escrow Agreement (RSE Collection, LLC), Subscription Escrow Agreement (RSE Innovation, LLC)
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Company warrants to and agrees with the Escrow Agent that, to its knowledge, there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and that no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy disagreement resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties so long as such controversy disagreement shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such of the parties and the Subscription Proceeds and the Escrow Agent Agent, has received written instructions as to disbursement thereof or a copy of such court orderthereof; or
(ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy disagreement as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconduct.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker of RecordPlacement Agent. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished.
(g) The Company and Broker of Record Placement Agent jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees and agents and to save the Escrow Agent and each of its officers, directors, employees and agents harmless from and against any and all Claims (as hereunder defined) and Losses (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct. For the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the Escrow Agent or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker of RecordPlacement Agent, or
(ii) the appointment of the Escrow Agent under this Agreement, or
(iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct.
Appears in 6 contracts
Samples: Subscription Escrow Agreement (SlideBelts Inc.), Subscription Escrow Agreement (Hylete, Inc.), Subscription Escrow Agreement (Hylete, Inc.)
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Company warrants to and agrees with the Escrow Agent that, to its knowledge, there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and that no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties so long as such controversy shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such parties and the Subscription Proceeds and the Escrow Agent has received written instructions as to disbursement thereof or a copy of such court order; or
(ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker Broker-Dealer of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconduct.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker Broker-Dealer of Record. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished.
(g) The Company and Broker Broker-Dealer of Record jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees and agents and to save the Escrow Agent and each of its officers, directors, employees and agents harmless from and against any and all Claims (as hereunder defined) and Losses Xxxxxx (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct. For the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the Escrow Agent or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker Broker-Dealer of Record, or
(ii) the appointment of the Escrow Agent under this Agreement, or
(iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct.
Appears in 3 contracts
Samples: Subscription Escrow Agreement (Here Collection LLC), Subscription Escrow Agreement (Every Assets I, LLC), Subscription Escrow Agreement (RSE Innovation, LLC)
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Company warrants to and agrees with the Escrow Agent that, to its knowledge, there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and that no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties so long as such controversy shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such parties and the Subscription Proceeds and the Escrow Agent has received written instructions as to disbursement thereof or a copy of such court order; or
(ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconduct.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker of Record. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished.
(g) The Company and Broker of Record jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees and agents and to save the Escrow Agent and each of its officers, directors, employees and agents harmless from and against any and all Claims (as hereunder defined) and Losses Xxxxxx (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct. For the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the Escrow Agent or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker of Record, or
(ii) the appointment of the Escrow Agent under this Agreement, or
(iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct.
Appears in 3 contracts
Samples: Subscription Escrow Agreement (RSE Portfolio, LLC), Subscription Escrow Agreement (RSE Portfolio, LLC), Subscription Escrow Agreement (RSE Portfolio, LLC)
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes agrees to undertake and perform only such duties as are expressly set forth herein herein, and no additional duties or obligations shall be implied hereunder. In performing -3- its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction through a final, non-appealable written order. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties. Under no circumstances shall the Escrow Agent be liable for any incidental, consequential, special or punitive damages.
(b) The Company warrants to and agrees with the Escrow Agent that, to its knowledge, that there is no security interest in the Subscription Proceeds Escrow Funds or any part of the Subscription Proceeds and that Escrow Funds; no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds Escrow Funds or any part of the Subscription ProceedsEscrow Funds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds Escrow Funds or any part of the Subscription Proceeds Escrow Funds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds Escrow Funds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy disagreement resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties that conflict with the terms of this Agreement so long as such controversy disagreement shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds Escrow Funds or any part of such Subscription ProceedsEscrow Funds. Anything herein to the contrary notwithstanding, so long as such failure does not violate Escrow Agent’s express obligations under this Agreement or applicable law as determined by the Escrow Agent, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The So long as such action or inaction does not violate Escrow Agent’s express duties and obligations under this Agreement or applicable law as determined by the Escrow Agent, the Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed Escrow Funds or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such of the parties and the Subscription Proceeds Escrow Funds, and the Escrow Agent has received written instructions as to disbursement thereof or a copy of such court orderthereof; or
(ii) the parties have reached an agreement resolving their differences differences, and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity reasonably satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy disagreement as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds Escrow Funds, and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees that in As security for all fees and expenses of Escrow Agent hereunder and any and all Losses incurred by the event any controversy arises under or Escrow Agent in connection with its acceptance of appointment hereunder or with the performance of its obligations under this Agreement or and to secure the Subscription Proceeds or obligation of the Company to indemnify the Escrow Agent as set forth herein, the Escrow Agent is made hereby granted a party security interest in and a lien upon the Administration Fees, which security interest and lien shall be prior to all other security interests, liens or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to claims against the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy Funds or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconductany part thereof.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker of RecordCompany. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety thirty (9030) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided provided, however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder. Notwithstanding anything herein to the contrary, in the event the Company, the Subscriber Representative or any Subscriber violates the terms of this Escrow Agreement or applicable law, Escrow Agent may resign immediately by providing written notice to the Company.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss loss, or liability unless security and indemnity reasonably satisfactory to the Escrow Agent, Agent shall be furnished.
(g) The Company and Broker of Record the Subscriber Representative jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees employees, and agents and to save defend the Escrow Agent and each of its officers, directors, employees employees, and agents and hold each of them harmless from and against any and all Claims losses, damages, claims, liabilities, penalties, judgments, settlements, litigation, investigations, reasonable costs or expenses (as hereunder definedincluding, without limitation, the reasonable fees and expenses of outside counsel and experts and their staffs and all expense of document location, duplication and shipment) and Losses (as hereinafter definedcollectively, “Losses”) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement.
(h) The Company and Subscriber Representative acknowledge that the Escrow Agent is serving as escrow agent for the limited purposes set forth herein, and represent, covenant, and warrant to the Escrow Agent that no statement or representation, whether oral or in writing, has been or will be made to any Subscriber to the effect that the Escrow Agent has investigated the desirability or advisability of investment in the Shares or approved, endorsed or passed upon the merits of such investment or is otherwise involved in any manner with the transactions contemplated hereby, other than Claims as Escrow Agent under this Agreement. It is further agreed that the Company and the Subscriber Representative shall not use or permit the use of the name “CVEX” or any variation thereof in any sales presentation, placement or offering memorandum, or literature pertaining directly or indirectly to the offering except strictly in the context of the duties of the Escrow Agent as escrow agent under this Agreement. Any breach or violation of the paragraph shall be grounds for immediate termination of this Agreement by the Escrow Agent.
(i) The Escrow Agent shall have no duty or responsibility for determining whether the Shares or the offer and sale thereof conform to the requirements of applicable Federal or state securities laws, including but not limited to the Securities Act of 1933 or the Securities Exchange Act of 1934 (both, as amended). The Company represents and warrants to the Escrow Agent that the Shares and the Offering will comply in all respects with applicable Federal and state securities laws, and further represents and warrants that the Company has obtained and acted upon the advice of legal counsel with respect to such compliance with applicable Federal and state securities laws. The Company acknowledges that the Escrow Agent has not participated in the preparation or review of any sales or offering material relating to damages the Offering or the Shares. In addition to any other indemnities provided for in this Agreement, the Company agrees to indemnify and hold harmless the Escrow Agent and each of its officers, directors, agents and employees from and against all Losses incurred by the Escrow Agent or such persons and which directly or indirectly result from any violation or alleged violation of any Federal or state securities laws, except to the extent due to or arising from the out of Escrow Agent’s gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction through a final, non-appealable written order.
(j) Escrow Agent shall be entitled to receive payment of the fees and compensation set forth herein or as provided in Exhibit B to this Escrow Agreement, as well as reimbursement for its reasonable costs and expenses incurred in connection with the performance by it of services under this Escrow Agreement (including reasonable fees and expenses of Escrow Agent's counsel) (“Escrow Fees”). For Company binds and obligates itself to pay to Escrow Agent all Escrow Fees to which Escrow Agent is entitled. In no event shall Company utilize any portion of the purposes hereofSubscription Proceeds to pay any portion of the Escrow Fees. If Company fails to timely pay any compensation, fee or reimbursement owing to Escrow Agent pursuant hereto, Escrow Agent shall be entitled to offset and deduct such compensation, fee and/or reimbursement from the term “Claims” Administration Fee portion of the Escrow Funds only, but in no event shall mean all claimsEscrow Agent be entitled to offset and deduct any such compensation, lawsuitsfee and/or reimbursement from the Subscription Proceeds portion of the Escrow funds. The obligations under this Section 6(j) shall survive any termination of this Escrow Agreement and the resignation or removal of the Escrow Agent.
(k) In no event shall the Escrow Agent have any liability or responsibility for any actions of Company or the Subscriber Representative or for any actions, causes including the payment or deposit of action Subscription Proceeds or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the funds with Escrow Agent or any affiliate of Escrow Agent prior to the date of this Agreement or the withdrawal or payment of such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action Subscriber Proceeds or other legal action funds by or proceeding is alleged to the Company, the Subscriber Representative or determined, directly any other person or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker of Record, or
(ii) the appointment of the Escrow Agent under this Agreement, or
(iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconductentity.
Appears in 1 contract
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Company warrants to and agrees with the Escrow Agent that, to its knowledge, there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and that no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties so long as such controversy shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such parties and the Subscription Proceeds and the Escrow Agent Agent, has received written instructions as to disbursement thereof or a copy of such court order; or
(ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker Broker-Dealer of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconduct.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker Broker-Dealer of Record. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished.
(g) The Company and Broker Broker-Dealer of Record jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees and agents and to save the Escrow Agent and each of its officers, directors, employees and agents harmless from and against any and all Claims (as hereunder defined) and Losses (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct. For the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the Escrow Agent or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker Broker-Dealer of Record, or
(ii) the appointment of the Escrow Agent under this Agreement, or
(iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct.
Appears in 1 contract
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such shall have no duties as are or responsibilities except those expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconductherein. The Escrow Agent shall have no responsibility for the validity of any agreements referred to in no event incur this Agreement, or for the performance of any such agreements by any party thereto or for interpretation of any of the provisions of any of such agreements. The liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunderhereunder shall be limited solely to bad faith, willful misconduct or (ii) any action taken or omitted to gross negligence on its part. The Escrow Agent shall be taken protected in reliance acting upon any certificate, notice or other instrument delivered to whatsoever received by the Escrow Agent under this Agreement, not only as to its due execution and believed by it the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information therein contained, which the Escrow Agent in good faith believes to be genuine and to have been signed or presented by the a proper party person or partiespersons. The Escrow Agent shall not be obligated to take any legal or other action hereunder which might in its judgment involve expense or liability unless it shall have been furnished with indemnity acceptable to it.
(b) The Company warrants to and agrees with In the Escrow Agent that, to its knowledge, there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and event that no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at be uncertain as to its duties or rights hereunder or shall receive instructions from any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction undersigned with respect to the Subscription Proceeds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent property held by it in escrow pursuant to serve as escrow agent hereunder, it is understood and agreed thatthis Agreement which, in the event opinion of the Escrow Agent, are in conflict with any controversy resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by of the provisions of this Agreement, the Escrow Agent shall be entitled, at entitled to refrain from taking any action until it shall be directed otherwise in writing by the option Sellers or by an order of the Escrow Agent, to refuse to comply with the demands a court of any parties so long as such controversy shall continuecompetent jurisdiction. In such event, the The Escrow Agent may elect not consult counsel satisfactory to make any delivery it, including house counsel, and the advice or other disposition of the Subscription Proceeds or any part opinion of such Subscription Proceeds. Anything herein to the contrary notwithstandingcounsel shall be full and complete authorization and protection in respect of any action taken, the Escrow Agent shall not be suffered or become liable to such parties or any of them for the failure of the Escrow Agent to comply omitted by it hereunder in good faith and in accordance with the conflicting advice or adverse demands opinion of such partiescounsel. The Escrow Agent shall be entitled deemed to continue have no notice of, or duties with respect to, any agreement or agreements with respect to refrain and refuse any property held by it in escrow pursuant to deliver this Agreement other than this Agreement or except as otherwise dispose of provided herein. This Agreement sets forth the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) entire agreement between the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such parties and the Subscription Proceeds hereto and the Escrow Agent has received written instructions as Agent. Notwithstanding any provision to disbursement thereof or a copy the contrary contained in any other agreement (excluding any amendment to this Agreement) among any of such court order; or
(ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy as described abovehereto, the Escrow Agent shall have no interest in the right, property held by it in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation escrow pursuant to clause (e) below, to tender into this Agreement except as provided in this Agreement. In the registry or custody event that any of the terms and provisions of any court having jurisdictionother agreement (excluding any amendment to this Agreement) between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, respects.
(c) Neither the Escrow Agent nor any of its directors, officers or employees shall be discharged from all further duties under this Agreement; providedliable to anyone for any action taken or omitted to be taken by it or any of its directors, howeverofficers or employees hereunder except in the case of gross negligence, that bad faith or willful misconduct. Each of the filing of any such legal proceedings shall not deprive Sellers, jointly and severally, covenant and agree to indemnify the Escrow Agent and hold it harmless without limitation from and against any loss, liability or expense of its compensation hereunder earned prior to such filing and discharge of any nature incurred by the Escrow Agent arising out of its duties hereunder.
(d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or with the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceedsadministration of its duties hereunder, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expensesincluding, including reasonable but not limited to, legal fees and expensesexpenses and other costs and expenses of defending or preparing to defend against any claim of liability in the premises, associated with unless such controversy loss, liability or litigation; provided, however, that such compensation and legal reimbursement expense shall not apply if the controversy relates to be caused by the Escrow Agent’s 's gross negligence or willful misconduct.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker of Record. Such resignation shall be effective on the date set forth in such written noticenegligence, which shall be no earlier than ninety (90) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished.
(g) The Company and Broker of Record jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees and agents and to save the Escrow Agent and each of its officers, directors, employees and agents harmless from and against any and all Claims (as hereunder defined) and Losses (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence bad faith or willful misconduct. For the purposes hereof, the term “Claims” In no event shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the Escrow Agent be liable for indirect, punitive, special or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker of Record, or
(ii) the appointment of the Escrow Agent under this Agreement, or
(iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconductconsequential damages.
Appears in 1 contract
Samples: Escrow Agreement (FMR Corp)
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Company warrants to and agrees with the Escrow Agent that, to its knowledge, there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and that no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties so long as such controversy shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such parties and the Subscription Proceeds and the Escrow Agent has received written instructions as to disbursement thereof or a copy of such court order; or
(ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconduct.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker of RecordCompany. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished.
(g) The Company and Broker of Record jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees and agents and to save the Escrow Agent and each of its officers, directors, employees and agents harmless from and against any and all Claims (as hereunder defined) and Losses (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct. For the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the Escrow Agent or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker of RecordCompany, or
(ii) the appointment of the Escrow Agent under this Agreement, or
(iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct.
Appears in 1 contract
Samples: Subscription Escrow Agreement (Every Assets I, LLC)
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Company warrants to and agrees with the Escrow Agent that, to its knowledge, there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and that no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties so long as such controversy shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such parties and the Subscription Proceeds and the Escrow Agent has received written instructions as to disbursement thereof or a copy of such court order; or
(ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker Broker-Dealer of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconduct.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker Broker-Dealer of Record. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished.
(g) The Company and Broker Broker-Dealer of Record jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees and agents and to save the Escrow Agent and each of its officers, directors, employees and agents harmless from and against any and all Claims (as hereunder defined) and Losses (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct. For the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the Escrow Agent or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker Broker-Dealer of Record, or
(ii) the appointment of the Escrow Agent under this Agreement, or
(iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct.
Appears in 1 contract
Samples: Subscription Escrow Agreement (Here Collection LLC)
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Company warrants to and agrees with the Escrow Agent that, to its knowledge, there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and that no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties so long as such controversy shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to DocuSign Envelope ID: 69F50673-6911-4511-A59E-5059758B199E deliver or otherwise dispose of the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such parties and the Subscription Proceeds and the Escrow Agent has received written instructions as to disbursement thereof or a copy of such court order; or
(ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconduct.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker of Record. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets DocuSign Envelope ID: 69F50673-6911-4511-A59E-5059758B199E then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished.
(g) The Company and Broker of Record jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees and agents and to save the Escrow Agent and each of its officers, directors, employees and agents harmless from and against any and all Claims (as hereunder defined) and Losses (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct. For the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the Escrow Agent or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker of Record, or
(ii) the appointment of the Escrow Agent under this Agreement, or
or (iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct.
Appears in 1 contract
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s proven gross negligence or willful misconduct. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either any party heretohereto including, without limitation Escrow Agent’s counsel, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties. In no event shall the Escrow Agent be liable for lost profits or any consequential, special, indirect or punitive damages even if the Escrow Agent has been advised of the possibility of the foregoing.
(b) The Company LLC warrants to and agrees with the Escrow Agent that, to its knowledge, that there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and that Proceeds; no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy disagreement resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties so long as such controversy disagreement shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed Subscription Proceeds or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) the rights Escrow Agent shall have received a final binding nonappealable order of such parties have been finally settled or duly adjudicated in a court having with jurisdiction over such parties and the Subscription Proceeds and matter directing the Escrow Agent to make a disbursement of the Subscription Proceeds, together with an opinion of counsel of LLC and the Subscriber Representative, in form and substance reasonably acceptable to the Escrow Agent and its counsel, stating that the court order is a final determination of the rights of the parties hereto with respect to the Subscription Proceeds, that the time to appeal from said court order has received written instructions as to disbursement thereof or a copy of such expired, and that said court orderorder is binding upon the applicable parties; or
(ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy disagreement as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees LLC and Subscriber Representative agree that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided. As security for all fees and expenses of Escrow Agent hereunder and any and all losses, howeverclaims, that such compensation damages, liabilities and legal reimbursement shall not apply if the controversy relates to expenses incurred by the Escrow Agent’s gross negligence Agent in connection with its acceptance of appointment hereunder or willful misconductwith the performance of its obligations under this Agreement and to secure the obligation of the LLC and Subscriber Representative to indemnify the Escrow Agent as set forth herein, the Escrow Agent is hereby granted a security interest in and a lien upon the Administrative Fees, which security interest and lien shall be prior to all other security interests, liens or claims against the Subscription Proceeds or any part thereof.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker of RecordLLC. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety thirty (9030) days after such written notice has been given. On or prior to the date such resignation is to become effective, the Escrow Agent may deliver the Subscription Proceeds to any successor escrow agent appointed by the other parties hereto. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets the Subscription Proceeds then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have the right to withhold from the Administrative Fee an amount equal to the amount due and owing to the Escrow Agent plus any costs and expenses the Escrow Agent shall reasonably believe may be incurred by the Escrow Agent in connection with its resignation. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished.
(g) The Company LLC and Broker of Record Subscriber Representative, jointly and severally severally, agree to indemnify the Escrow Agent and each of its officers, directors, employees parent, subsidiaries, affiliates and agents and each of their respective successors and assigns (collectively, the “Indemnified Parties”) and to save the Escrow Agent and each of its officers, directors, employees and agents Indemnfied Parties harmless from and against any and all Claims (as hereunder defined) and Losses (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents Indemnified Parties as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents the Indemnifed Parties either directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct. For the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action action, cross-claim, affirmative defense, interpleader or interpleaderotherwise) the Escrow Agent or any such officer, director, employee or agentIndemnified Parties, even if groundless, meritless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
: (ia) the acts or omissions of the Company and Broker of RecordLLC, or
Subscriber Representative or Administrative Agent or (iib) the appointment of the Escrow Agent as escrow agent under this Agreement, or
or (iiic) the performance by the Escrow Agent of its powers and duties under this Agreement. The term “Losses” shall mean all losses, costs, damages, expenses, judgments, settlements and liabilities of whatever nature (including but not limited to attorneys’, accountants’ and other than claims professionals’ fees, litigation and court costs and expenses and amounts paid in settlement), directly or indirectly resulting from, arising out of or relating to damages arising one or more Claims. Upon the written request of an Indemnified Party, the LLC and Subscriber Representative agree to assume the investigation and defense of any Claim, including the employment of counsel acceptable to the applicable Indemnified Party and the payment of all expenses related thereto and, notwithstanding any such assumption, the Indemnified Party shall have the right, and the LLC and Subscriber Representative agree to pay the costs and expense thereof, to employ separate counsel with respect to any such Claim and to participate in the investigation and defense thereof in the event that such Indemnified Party shall have been advised by legal counsel that there may be one or more legal defenses available to such Indemnified Party which are different from or additional to those available to the LLC, Subscriber Representative or Administrative Agent. The LLC and Subscriber Representative hereby agree that the indemnifications and protections afforded the Indemnified Parties in this section shall survive the termination of this Agreement and any resignation or removal of the Escrow Agent’s gross negligence or willful misconduct.
Appears in 1 contract
Samples: Subscription Fee Escrow Agreement
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Company warrants to and agrees with the Escrow Agent that, to its knowledge, there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and that no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties so long as such controversy shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such parties and the Subscription Proceeds and the Escrow Agent has received written instructions as to disbursement thereof or a copy of such court order; or
(ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker of Record Placement Agent have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconduct.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker of RecordPlacement Agent. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished.
(g) The Company and Broker of Record Placement Agent jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees and agents and to save the Escrow Agent and each of its officers, directors, employees and agents harmless from and against any and all Claims (as hereunder defined) and Losses (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct. For the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the Escrow Agent or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker of Record, or
(ii) the appointment of the Escrow Agent under this Agreement, or
(iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct.
Appears in 1 contract
Samples: Subscription Escrow Agreement
Duties of Escrow Agent; Indemnification. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of the Escrow Agent’s so acting or failing to so act; provided, however, that the Escrow Agent shall not be relieved from liability for damages arising from the Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of the Escrow Agent hereunder, or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to the Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Company warrants to and agrees with the Escrow Agent that, to its knowledge, there is no security interest in the Subscription Proceeds or any part of the Subscription Proceeds and that no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or any part of the Subscription Proceeds; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or any part of the Subscription Proceeds or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds or any part thereof.
(c) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in the event of any controversy resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Agreement, the Escrow Agent shall be entitled, at the option of the Escrow Agent, to refuse to comply with the demands of any parties so long as such controversy shall continue. In such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until:
(i) the rights of such parties have been finally settled or duly adjudicated in a court having jurisdiction over such parties and the Subscription Proceeds and the Escrow Agent has received written instructions as to disbursement thereof or a copy of such court order; or
(ii) the parties have reached an agreement resolving their differences and have jointly notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement. In the event of a controversy as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, if the Company and the Broker of Record Placement Agent have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent or its legal counsel. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive the Escrow Agent of its compensation hereunder earned prior to such filing and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconduct.
(e) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker of RecordPlacement Agent. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) days after such written notice has been given. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement; provided however, the Escrow Agent shall be entitled to its compensation earned prior thereto. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(f) The Escrow Agent shall have no obligation to take any legal action in connection with this Agreement or its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Escrow Agent, shall be furnished.
(g) The Company and Broker of Record Placement Agent jointly and severally agree to indemnify the Escrow Agent and each of its officers, directors, employees and agents and to save the Escrow Agent and each of its officers, directors, employees and agents harmless from and against any and all Claims (as hereunder defined) and Losses (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents directly or indirectly as a result of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct. For the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) the Escrow Agent or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker of RecordPlacement Agent, or
(ii) the appointment of the Escrow Agent under this Agreement, or
(iii) the performance by the Escrow Agent of its powers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence or willful misconduct.
Appears in 1 contract
Samples: Subscription Escrow Agreement (RSE Collection, LLC)
Duties of Escrow Agent; Indemnification. (a) The This Agreement expressly and exclusively sets forth the duties of the Escrow Agent undertakes with respect to perform only such any and all matters pertinent hereto, which duties as are expressly set forth herein shall be deemed purely ministerial in nature, and no additional implied duties or obligations shall be implied hereunderread into this Agreement against the Escrow Agent. The Escrow Agent shall in no event be deemed to be a fiduciary to the Company, the Subscribers, or any other person or entity under this Agreement. The permissive rights of the Escrow Agent to do things enumerated in this Agreement shall not be construed as duties. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunderduties, the Escrow Agent shall not be liable to anyone for any damages, losses or expenses other than damages, losses or expenses which may be incurred as have been finally adjudicated by a result court of competent jurisdiction to have directly resulted from the Escrow Agent’s so acting willful misconduct or failing gross negligence. In no event shall the Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages of any kind whatsoever (including but not limited to so act; providedlost profits), however, that even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Escrow Agent shall not be relieved from liability responsible or liable for damages arising from the failure of the Company to take any action in accordance with this Agreement. Any wire transfers of funds made by the Escrow Agent pursuant to this Escrow Agreement will be made subject to and in accordance with the Escrow Agent’s gross negligence or willful misconductusual and ordinary wire transfer procedures in effect from time to time. The Escrow Agent shall in have no event incur any liability with respect to (i) the transfer or distribution of any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to either party hereto, given with respect to any question relating to the duties and responsibilities of funds affected by the Escrow Agent hereunder, pursuant to wiring or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered transfer instructions provided to the Escrow Agent and believed by it in accordance with the provisions of this Agreement. The Escrow Agent shall not be obligated to be genuine and take any legal action or to have been signed commence any proceedings in connection with this Agreement or presented by the proper party any property held hereunder or partiesto appear in, prosecute or defend in any such legal action or proceedings.
(b) The Company warrants to acknowledges and agrees that the Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of this Escrow Agreement or any part thereof, or of any person executing or depositing such subject matter. No provision of this Agreement shall require the Escrow Agent to risk or advance its own funds or otherwise incur any financial liability or potential financial liability in the performance of its duties or the exercise of its rights under this Agreement. Truist Bank Escrow Services Subscription Escrow 1.2015
(c) This Agreement constitutes the entire agreement between the Escrow Agent and the Company in connection with the subject matter of this Agreement, and no other agreement entered into by the Company related to the subject matter of this Agreement, including, without limitation, the Subscription Agreements, shall be considered as adopted or binding, in whole or in part, upon the Escrow Agent notwithstanding that any such other agreement may be deposited with the Escrow Agent thator the Escrow Agent may have knowledge thereof.
(d) The Escrow Agent shall in no way be responsible for nor shall it be its duty to notify the Company or any other person or entity interested in this Agreement of any payment required or maturity occurring under this Agreement or under the terms of any instrument deposited herewith unless such notice is explicitly provided for in this Agreement.
(e) The Escrow Agent shall be protected in acting upon any written instruction, notice, request, waiver, consent, certificate, receipt, authorization, power of attorney or other paper or document which the Escrow Agent in good faith believes to be genuine and what it purports to be, including, but not limited to, items directing investment or non-investment of funds, items requesting or authorizing release, disbursement or retainage of the subject matter of this Agreement and items amending the terms of this Agreement. The Escrow Agent shall be under no duty or obligation to inquire into or investigate the validity, accuracy or content of any such notice, request, waiver, consent, certificate, receipt, authorization, power of attorney or other paper or document. The Escrow Agent shall have no duty or obligation to make any formulaic calculations of any kind hereunder.
(f) The Escrow Agent may execute any of its knowledge, powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent shall be entitled to seek the advice of legal counsel with respect to any matter arising under this Agreement and the Escrow Agent shall have no liability and shall be fully protected with respect to any action taken or omitted pursuant to the advice of such legal counsel. The Company shall be liable for and shall promptly pay upon demand by the Escrow Agent the reasonable and documented fees and expenses of any such legal counsel.
(g) The Company represents and warrants to the Escrow Agent that there is no security interest in the Subscription Proceeds or the earnings thereon or any part of the Subscription Proceeds and that or such earnings; no financing statement under the Uniform Commercial Code of any jurisdiction is on file in any jurisdiction claiming a security interest in or describing, whether specifically or generally, the Subscription Proceeds or the earnings thereon or any part of the Subscription ProceedsProceeds or such earnings; and the Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Subscription Proceeds or the earnings thereon or any part of the Subscription Proceeds or such earnings or to file any financing statement under the Uniform Commercial Code of any jurisdiction with respect to the Subscription Proceeds Proceeds, the earnings thereon or any part thereof.
(ch) As an additional consideration for and as an inducement for the Escrow Agent to serve as escrow agent hereunder, it is understood and agreed that, in In the event of any controversy disagreement involving the Company, any Subscriber or any other person or entity resulting in adverse claims and or demands being made in connection with or for any money or other property involved in or affected the matters covered by this Agreement, or in the Escrow Agent shall be entitled, at the option of event that the Escrow Agent, in good faith, is in doubt as to what action it should take hereunder, the Escrow Agent may, at its option, refuse to comply with the any claims or demands of on it, or refuse to take any parties other action hereunder, so long as such controversy shall continue. In disagreement continues or such doubt exists, and in any such event, the Escrow Agent may elect not to make any delivery or other disposition of the Subscription Proceeds or any part of such Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable in any way to such parties the Company, any Subscriber or any of them other person or entity for its failure or refusal to act, and the failure of the Escrow Agent to comply with the conflicting or adverse demands of such parties. The Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the subscription proceed or any part thereof or to otherwise act hereunder, as stated above, unless and until:
from acting until (i) the rights of such parties the Company, the Subscribers and all other interested persons and entities shall have been fully and finally settled or duly adjudicated in by a court having jurisdiction over such parties of competent jurisdiction, or (ii) all differences shall have been settled and all doubt resolved by agreement among the Subscription Proceeds Company and all other interested persons and entities, and the Escrow Agent has received written instructions as to disbursement shall have been notified thereof or a copy of in writing signed by the Company and all such court order; or
(ii) persons and entities. Notwithstanding the parties have reached an agreement resolving their differences and have jointly notified preceding, the Escrow Agent may in writing its discretion obey the order, judgment, decree or levy of such agreement any court, whether with or without jurisdiction, or of an agency of the United States or any political subdivision thereof, or of any agency of any State of the United States or of any political subdivision of any thereof, and have provided the Escrow Agent is hereby authorized in its sole discretion to comply with indemnity satisfactory to and obey any such orders, judgments, decrees or levies. The rights of the Escrow Agent against any liability, claims under this sub-paragraph are cumulative of all other rights which it may have by law or damages resulting from compliance by the otherwise. Truist Bank Escrow Agent with such agreement. Services Subscription Escrow 1.2015 In the event of a controversy any disagreement or doubt, as described above, the Escrow Agent shall have the right, in addition to the rights described above and at the option election of Escrow Agent, if the Company and the Broker of Record have not named a successor Escrow Agent within thirty (30) days after the Escrow Agent’s notice of resignation pursuant to clause (e) below, to tender into the registry or custody of any court having jurisdiction, all money funds and property comprising held under this Agreement, and the Subscription Proceeds and may Escrow Agent shall have the right to take such other legal action as may be appropriate or necessary, in the opinion sole discretion of the Escrow Agent or its legal counselAgent. Upon such tender, the Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings action of the Escrow Agent shall not deprive the Escrow Agent of its compensation and right to reimbursement of expenses hereunder earned arising prior to such filing action and discharge of the Escrow Agent of its duties hereunder.
(d) The Company agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent is made a party to or intervenes in any litigation pertaining to this Agreement or the Subscription Proceeds, to pay to the Escrow Agent reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all costs and expenses, including reasonable legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not apply if the controversy relates to the Escrow Agent’s gross negligence or willful misconduct.
(ei) The Escrow Agent may resign at any time from its obligations under this Agreement by providing written notice to the Company and Broker of RecordCompany. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety thirty (9030) days after such written notice has been givenfurnished. In such event, the Company shall promptly appoint a successor escrow agent. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets funds and other property then held by it the Escrow Agent hereunder and the Escrow Agent shall thereupon be relieved of all further duties and obligations under this Agreement; provided provided, however, that any such action of the Escrow Agent shall be entitled to not deprive the Escrow Agent of its compensation earned and right to reimbursement of expenses hereunder arising prior theretoto such action and discharge of the Escrow Agent of its duties hereunder. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
(fj) Any entity into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any entity to which all or substantially all the escrow business of the Escrow Agent may be transferred, shall be the Escrow Agent under this Agreement without further act.
(k) The Company agrees to indemnify, defend and hold harmless the Escrow Agent and each of the Escrow Agent’s officers, directors, agents and employees (the “Indemnified Parties”) from and against any and all losses, liabilities, claims made by the Company, any Subscriber or any other person or entity, damages, expenses and costs (including, without limitation, attorneys’ fees and expenses) of every nature whatsoever (collectively, “Losses”) which any such Indemnified Party may incur and which arise directly or indirectly from this Agreement or which arise directly or indirectly by virtue of the Escrow Agent’s undertaking to serve as Escrow Agent hereunder; provided, however, that no Indemnified Party shall be entitled to indemnity with respect to Losses that have been finally adjudicated by a court of competent jurisdiction to have been directly caused by such Indemnified Party’s gross negligence or willful misconduct. The provisions of this section shall survive the termination of this Agreement and any resignation or removal of the Escrow Agent.
(l) The Company acknowledges that the Escrow Agent is serving as escrow agent for the limited purposes set forth herein and represents, covenants and warrants to the Escrow Agent that no statement or representation, whether oral or in writing, has been or will be made to any Subscriber to the effect that the Escrow Agent has investigated the desirability or advisability of investment in the Shares or approved, endorsed or passed upon the merits of such investment or is otherwise involved in any manner with the transactions contemplated hereby, other than as escrow agent under this Agreement. It is further agreed that the Company shall not use or permit the use of the name “Truist”, “Truist Bank”, “SunTrust,” “SunTrust Bank,” “SunTrust Banks, Inc.” or any variation thereof in any sales presentation, placement or offering memorandum or literature pertaining directly or indirectly to the Offering except strictly in the context of the duties of the Escrow Agent as escrow agent under this Agreement. Any breach or violation of the paragraph shall be grounds for immediate termination of this Agreement by the Escrow Agent.
(m) The Escrow Agent shall have no obligation duty or responsibility for determining whether the Shares or the offer and sale thereof conform to take any legal action in connection with this Agreement the requirements of applicable Federal or its enforcementstate securities laws, including but not limited to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended. The Company represents and warrants to appear in, prosecute or defend any action or legal proceeding which would or might involve the Escrow Agent that the Shares and the Offering will comply in any cost, expense, loss or liability unless security all respects with applicable Federal and indemnity satisfactory state securities laws and further represents and warrants that the Company has obtained and acted upon the advice of legal counsel with respect to the Escrow Agent, shall be furnished.
(g) such compliance with applicable Federal and state securities laws. The Company and Broker of Record jointly and severally agree to indemnify acknowledges that the Escrow Agent has not participated in the preparation or review of any sales or offering material relating to the Offering or the Shares. In addition to any other indemnities provided for in this Agreement, the Company agrees to indemnify, defend and each of its officers, directors, employees and agents and to save hold harmless the Escrow Agent and each of its officers, directors, employees and agents harmless Indemnified Parties from and against any and all Claims (as hereunder defined) and Losses (as hereinafter defined) which may be incurred by the Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents the Indemnified Parties which directly or indirectly as arise from any violation or alleged violation of any Federal or state securities laws; provided, however, that no Indemnified Party shall have the right to be indemnified hereunder with respect to any Losses that have been finally adjudicated by a result court of or in connection with Escrow Agent’s serving in the capacity of escrow agent under this Agreement, other than Claims relating competent jurisdiction to damages arising from the Escrow Agenthave been directly caused by such Indemnified Party’s gross negligence or willful misconduct. For The Company hereby agrees that the purposes hereof, the term “Claims” shall mean all claims, lawsuits, causes of action or other legal actions indemnifications and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or interpleader) protections afforded the Escrow Agent and the other Indemnified Parties in this section shall survive the termination of this Agreement and any resignation or removal of the Escrow Agent.
(n) The Escrow Agent and any such officer, director, officer or employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(i) the acts or omissions of the Company and Broker of Record, or
(ii) the appointment of the Escrow Agent may become financially interested in any transaction in which the Company may be interested and may contract with and lend money to the Company and otherwise act as fully and freely as though it were not escrow agent under this Agreement, or
(iii) the performance by . Nothing herein shall preclude the Escrow Agent from acting in any other capacity for the Company. Truist Bank Escrow Services Subscription Escrow 1.2015
(o) This Agreement is for the sole benefit of its powers the Company, the Subscribers and duties under this Agreement, other than claims relating to damages arising from the Escrow Agent’s gross negligence , and their respective successors and permitted assigns, and nothing herein, express or willful misconductimplied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, that Acquiom shall be a third party beneficiary entitled to enforce the terms of this Escrow Agreement, including without limitation with respect to the fees payable to Acquiom under Section 4(c).
Appears in 1 contract
Samples: Subscription Escrow Agreement (Modular Medical, Inc.)
