Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent. (a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber. (b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof. (c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction. (d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement. (e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery. (f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation. (g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 8 contracts
Samples: Escrow Agreement (Intervest Corporation of New York), Escrow Agreement (Intervest Bancshares Corp), Escrow Agreement (Intervest Corporation of New York)
Duties of Escrow Agent. Acceptance by It is agreed that our duties as an escrow agent for the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent security deposit are only such as are herein specifically provided and such duties are provided, being purely ministerial administrative in nature. The Escrow Agent's primary duty , and we shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under incur no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained liability whatsoever except for willful misconduct or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it gross negligence so long as we have acted in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion its disposition of the Escrow Agentsecurity deposit. We are an independent escrow agent and do not represent either the Owner or Tenant with respect to our duties and obligations as escrow agent for the security deposit. Owner and Tenant, for the instructions it receives are ambiguousLease hereby indemnify, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to release and hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for us harmless from any act done or step taken or omitted to be done by it, in good faith, or for any mistake of fact or law, or for anything which it may us in good faith do or refrain from doing in connection herewithperformance of our duties as an escrow agent. Owner and Tenant, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold for the Escrow Agent harmless from and against any and Lease agree to pay all claims, lossescosts, damages, liabilities judgments and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or attorney's fees suffered and incurred by the Escrow Agent us in connection with its acceptance or arising out of our acting as escrow agent hereunder. It is specifically understood and agreed that we are acting in the capacity of escrow agent is an accommodation to both parties. Upon the deposit of the appointment as Escrow Agent hereunder or the performance security deposit with a court of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) competent jurisdiction in the event of a dispute we shall deduct our costs and shall be relieved of all further obligations and responsibilities to Owner and Tenant with respect to the security deposit. The Owner authorizes us to hold all security deposits paid by the tenants. If an Owner designates someone to represent the Owner regarding security inspections and requests to hold security, the Owner must notify us, in writing, as to who the representative might be. Owner or their designated representative shall inspect the property as soon after checkout as possible and before the next tenancy. Owner shall have 72 hrs after expiration of this lease to advise us, in writing, of any dispute damage. If the Owner fails to notify us to hold security, in writing, within that 72 hr period we will refund the entire security deposit to the Tenant. If the Owner instructs us to hold all or questions part of the security deposit, in writing, within that 72 hr period we will continue to hold the entire security deposit and will not release any portion thereof until the Owner and Tenant reach an agreement. When such an agreement is reached both the Tenant and Owner will notify us as to the construction of any agreement and its terms, in writing, as to the agreed settlement and stating exactly how the security deposit should be paid. Owner agrees that we are not responsible for the results of the provisions hereof inspection or its duties hereunderfor failure to return the security deposit to the Tenants pursuant to the above, and it shall incur no liability in acting provided we have acted in good faith in accordance with faith. If we or our agents and/or employees inspect the written opinion and instructions property at the end of such counsel. The fees for consultation with such counsel shall the lease, Owner agrees to be paid bound by the Corporation.
(g) Reference in this Escrow Agreement our inspection report as to the Registration Statement condition of the property. Owner (and Tenant, for the Lease) hereby indemnify, release and hold us harmless from and agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees suffered and incurred by us in connection with or arising out of our inspection of the property after termination of the Lease and/or failure to return the security deposit to the Tenant within 30 days pursuant to NJSA 46:8"21.1 due to our failure to receive the necessary agreement between Owner and Tenant as to how the security deposit is to be applied, or due to our exercising its rights hereunder to deposit the security deposit in court and seek court approval as to the disposition of the security deposit, provided we have acted in good faith. If Owner and Tenant cannot agree, we may seek Court approval for identification purposes only, distribution of funds and its terms and conditions are not thereby incorporated hereindeduct the costs of seeking such approval from the security deposit. Security deposit will be mailed to the Tenant by us within ten days after a satisfactory inspection. Security deposits for leases with a term under 125 days will be held in our non-interest bearing escrow account. This paragraph shall survive termination of the Lease.
Appears in 4 contracts
Samples: Rental Listing Agreement, Rental Listing Agreement, Rental Listing Agreement
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in this Escrow Agreement relying or refraining from acting on any instrument reasonably believed by him to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be subject to, nor obligated personally liable for any act he may do or omit to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties do hereunder as Escrow Agent or as attorney-in-fact of the Escrow Agent are only such as are herein specifically provided Participant while acting in good faith and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect exercise of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreementhis good judgment. The Escrow Agent may rely is hereby expressly authorized to disregard any and act upon all warnings given by any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agentparties or by any other person or entity, the instructions it receives are ambiguousexcepting only orders or process of courts of law, uncertain and is hereby expressly authorized to comply with and obey orders, judgments or in conflict with decrees of any previous instructions or this Escrow Agreement, then court. If the Escrow Agent is authorized uncertain of any actions to hold and preserve intact be taken or instructions to be followed, he may refuse to act in the absence of an order, judgment or decrees of a court. In case the Escrow Fund pending the settlement Agent obeys or complies with any such order, judgment or decree of any court, he shall not be liable to any of the parties or to any other person or entity, by reason of such controversy by final adjudication of a court compliance, notwithstanding any such order, judgment or courts of proper decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
(d) . The Escrow Agent shall not be liable in any respect on account of the identity, authority or rights of the parties executing or delivering or purporting to execute or deliver this Agreement or any documents or papers deposited or called for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligencehereunder. The Corporation shall indemnify It is understood and hold agreed that if the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon believes a dispute has arisen with respect to the Escrow Agent delivery and/or ownership or incurred by the Escrow Agent in connection with its acceptance right of possession of the appointment as Escrow Agent hereunder or the performance of its duties securities held by him hereunder, unless the Escrow Agent is determined authorized and directed to have committed an intentional wrongful act retain in his possession without liability to anyone all or to any part of said securities until such dispute shall have been grossly negligent with respect settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but he shall be under no duty whatsoever to its duties under this institute or defend any such proceedings. The Escrow Agreement.
(e) The Agent’s rights and responsibilities as Escrow Agent shall return terminate if he ceases to be Secretary of the Corporation any sums delivered to Company, in which case the successor as Secretary of the Company shall become Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryhereunder.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 4 contracts
Samples: Restricted Stock Agreement (Thermo Fisher Scientific Inc.), Restricted Stock Agreement (Thermo Fisher Scientific Inc.), Performance Restricted Stock Agreement (Thermo Fisher Scientific Inc.)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of will deposit the Escrow Fund other than to faithfully follow subscribers' checks for collection and credit the instructions herein contained or delivered proceeds to the Escrow Account to be held by it under the terms of this Agreement. Notwithstanding anything to the contrary contained herein, Escrow Agent in accordance with this is under no duty or responsibility to enforce collection of any checks delivered to Escrow AgreementAgent hereunder. The Escrow Agent may rely hereby is authorized to forward each check for collection and act upon any written noticedeposit the proceeds in the Escrow Account. As an alternative, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject may telephone the bank on which the check is drawn to no liability with respect confirm that the check has been paid. Additionally, to the forminsure that such funds have cleared normal banking channels for collection, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact for ten (10) business days funds to be released. Issuer shall immediately reimburse Escrow Agent any monies paid to it if thereafter the subscriber's check is returned unpaid. Any item returned unpaid to the Escrow Fund pending Agent on its first presentation for payment shall be returned to Issuer and need not be again presented by the settlement Escrow Agent for collection. Issuer agrees to reimburse Escrow Agent for the cost incurred with any returned check. For purposes of any such controversy this Agreement, the term "collected funds" or the term "collected" when referring to the proceeds of subscribers' checks shall mean all funds received by final adjudication Escrow Agent that have cleared normal banking channels and are in the form of a court or courts of proper jurisdiction.
(d) cash. The Escrow Agent shall not invest the funds deposited in the Escrow Account as instructed in writing by Issuer, and shall in no event be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligenceinvestment loss. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance Upon termination of the appointment as Escrow Agent hereunder or the performance of its duties hereunderescrow, unless the Escrow Agent is determined all earnings shall belong to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationto Issuer.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 4 contracts
Samples: Escrow Agreement (Active Ankle Systems Inc), Escrow Agreement (Active Ankle Systems Inc), Escrow Agreement (Imaging Center Inc)
Duties of Escrow Agent. Acceptance by the (a) The Escrow Agent of 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 Agreement is subject Agent shall not be liable to the following terms and conditionsanyone for any damages, losses or expenses which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities 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 bad faith, gross negligence or willful misconduct.
(ab) 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.
(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 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 limited entitled, at the option of the Escrow Agent, to those expressly set forth in this refuse to comply with the demands of any parties so long as such disagreement shall continue. In such event, the Escrow Agreement and 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 subject to, nor obligated or become liable to recognize, such parties or any other agreements between of them for the Corporation, Underwriter and any Subscriber.
(b) The duties failure of the Escrow Agent are only to comply with the conflicting or adverse demands of such as are herein specifically provided and such duties are purely ministerial in natureparties. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect 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 of the parties and the Subscription Proceeds and the Escrow Fund other than Agent, has received written instructions as to faithfully follow disbursement thereof; or
(ii) the instructions herein contained or delivered parties have reached an agreement resolving their differences and have notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent in accordance with this Escrow Agreement. The against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement.
(d) In the event of a 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, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may rely and act upon any written noticetake such other legal action as may be appropriate or necessary, instructionin the opinion of Escrow Agent or its legal counsel. Upon such tender, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject 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 no liability with respect to the form, execution or validity thereof. If, in the opinion such filing and discharge of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Issuer agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent shall return is made a party to or intervenes in any litigation pertaining to this Agreement or the Corporation any sums delivered Subscription Proceeds, to pay to the Escrow Agent pursuant reasonable compensation for its extraordinary services and to this Escrow Agreement for which reimburse the Escrow Agent has for all costs and expenses, including legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not received release instructions pursuant apply if the controversy relates to Section 4 hereofthe Escrow Agent’s bad faith, and as to which four years have passed since deliverygross negligence or willful misconduct.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel resign at any time from its obligations under this Agreement by providing written notice to the CorporationIssuer and Technology Platform. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) in 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 dispute or questions as 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 the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counselcompensation earned prior thereto. The fees Escrow Agent shall have no responsibility for consultation with such counsel shall be paid by the Corporationappointment of a successor escrow agent hereunder.
(g) Reference 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 Agreement Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Registration Statement is for identification purposes onlyEscrow Agent, and its terms and conditions are not thereby incorporated hereinshall be furnished.
Appears in 3 contracts
Samples: Escrow Agreement (Seismic Capital Co), Escrow Agreement (Seismic Capital Co), Escrow Agreement (Virtuoso Surgical, Inc.)
Duties of Escrow Agent. Acceptance The Title Company receiving funds (as a clarification, all Option Payments made by GEC shall be directly paid to the City and not held in escrow or otherwise by the Escrow Agent Title Company) as Closing agent is authorized and agrees by acceptance thereof to promptly deposit and hold the same (if in the form of its duties under this Escrow Agreement is cash) in an interest- bearing escrow account and to disburse the same subject to clearance thereof in accordance with the following terms and conditions, which all parties hereof. In the event of doubt as to this Escrow Agreement agree shall govern and control with respect to the rights, its duties, liabilities and immunities of the Escrow Agent.escrow agent may in its sole discretion,
(a) The duties and responsibilities continue to hold the monies which are the subject of this escrow until the parties mutually agree to the disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject toparties thereto, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
and/or (b) The duties deposit all the monies then held with the Clerk of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody Court of and safeguard upon notifying all parties concerned of such action, any liability on the Escrow Fund during the period part of the escrowTitle Company, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent as Closing agent, shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered fully terminate, except to the Escrow Agent in accordance with this Escrow Agreementextent of accounting for any monies theretofore delivered out of escrow. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and In the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement event of any lawsuit wherein the Title Company, as Closing agent, is made a party by virtue of acting as such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faithClosing agent hereunder, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions suit herein the Title Company, as Closing agent, interpleads the subject matter of this escrow, the Title Company shall be entitled to the construction of any recover reasonable attorneys’ fees and costs incurred, said fees and costs to be charged and assessed as court costs in favor of the provisions hereof prevailing party. All parties agree that the Title Company, as Closing agent, shall not be liable to any party or its duties hereunderperson whomsoever for misdelivery to GEC, and it shall incur no liability the Tribe or the City of monies or documents held in acting in good faith in accordance with the written opinion and instructions of escrow, unless such counsel. The fees for consultation with such counsel misdelivery shall be paid by due to willful breach of this Option Agreement or negligence on the Corporationpart of the Title Company, as Closing agent.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 3 contracts
Samples: Option to Purchase, Intergovernmental Agreement, Intergovernmental Agreement
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the A. Escrow Agent shall establish an escrow account (the "Escrow Account") into which the shares to be limited sold (the "Escrow Shares") and the funds to those expressly set forth be received from prospective purchasers of said shares (the "Prospective Purchasers") as well as any dividends earned by the Prospective Purchasers while the Escrow Shares are being held in this escrow (the "Escrow Agreement Funds") in connection with any sale by the Selling Stockholders pursuant to the Offering (collectively, the "Escrow Items") shall be deposited and held until an acquisition meeting the criteria specified in Rule 419 is completed. Escrow Funds shall be invested upon the written direction of an officer of the Issuer; provided however, that the Escrow Funds shall only be invested in an obligation that constitutes a "deposit", as that term is defined in section 3(l) of the Federal Deposit Insurance Act (each a “Permitted Investment”). The Issuer shall be solely responsible for ensuring that such directions include only Permitted Investments, and the Escrow Agent shall not be subject to, nor obligated have any obligation with respect to recognize, any other agreements between the Corporation, Underwriter and any Subscribersuch determination.
B. Escrow Agent shall receive and hold all shares of common stock sold pursuant to the Offering (b) The duties of i.e., the Escrow Agent are only such as are herein specifically provided Shares) pursuant to the terms set forth in this Agreement and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof Rule 419. All Escrow Shares are to remain as deposited and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy held until (i) released by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to Paragraphs "D", "E", "F" or "G" of this Escrow Article "3" of this Agreement for which or (ii) the Escrow Agent shall have deposited the Escrow Items in court pursuant to Paragraph "G" of Article "5" of this Agreement or the last sentence of Paragraph "I" of Article "5" of this Agreement. The identity of (i) each Selling Stockholder and (ii) the Prospective Purchaser shall be included with the stock certificates or other documents evidencing such securities which are delivered to the Escrow Agent. The Escrow Shares shall remain as issued and deposited and shall be held for the sole benefit of the Prospective Purchasers, who shall have voting rights with respect to the Escrow Shares held in their names, as provided by applicable state law. All stock powers, which shall be duly executed in blank, shall be sent to the Escrow Agents separate from the certificates evidencing the Escrow Shares.
C. If Escrow Agent shall receive written notice from the Issuer pursuant to Article "9" of this Agreement that the Issuer has entered into an agreement for the acquisition of a business pursuant to paragraphs (e)(1) and (e)(2) of Rule 419, and said written notice includes a representation that the Issuer has provided a post-effective amendment to the Issuer's registration statement which has been declared effective by the SEC to each Prospective Purchaser and has received confirmation from Prospective Purchasers pursuant to Rule 419(e)(2)(ii) that said Prospective Purchasers intend to continue to remain investors in the Issuer, then Escrow Agent, within two (2) business days, shall deliver the Escrow Shares to the applicable Prospective Purchasers who have given said confirmation at the address provided by the Selling Stockholders, if known, and shall deliver the Escrow Funds to the corresponding Selling Stockholders or, on their behalf to the brokerage account set forth in the Company’s records, or if no brokerage account is provided, to their home address which is specified in the Company’s records.
D. If Escrow Agent shall receive written notice from the Issuer pursuant to Article "9" of this Agreement that the Issuer has entered into an Acquisition Agreement pursuant to paragraphs (e)(1) and (e)(2) of Rule 419, and said written notice includes a representation that the Issuer has provided a post-effective amendment to the Issuer's registration statement which has been declared effective by the SEC to each Prospective Purchaser, and either (i) Issuer has received confirmation from Prospective Purchasers pursuant to Rule 419(e)(2)(ii) that said Prospective Purchasers do not intend to continue to remain investors in the Issuer or (ii) more than forty-five (45) business days have elapsed after the effective date of the post-effective amendment, then Escrow Agent shall within two (2) business days return the Escrow Funds to the corresponding Prospective Purchasers at the address provided by the Selling Stockholders, if known, and shall return the Escrow Shares to the corresponding Selling Stockholders or, on their behalf to the brokerage account set forth in the Company’s records, or if no brokerage account is provided, to their home address which is specified in the Company’s records.
E. If upon receiving written instructions from the Issuer that the Issuer has not received release instructions (i) negotiated an acquisition transaction, (ii) filed a post-effective amendment to its registration statement, (iii) successfully completed a reconfirmation offering meeting the requirements of Rule 419 and (iv) closed on the acquisition agreement within eighteen (18) months after the effective date of its registration statement, then Escrow Agent shall return the Escrow Funds to the corresponding Prospective Purchasers, and shall return the Escrow Shares to the corresponding Selling Stockholders pursuant to Section 4 hereofthe written instructions from the Issuer.
F. If the Issuer elects to terminate the Offering prior to the occurrence of the events specified in Paragraphs "D", "E" or "F" of this Article "3" of this Agreement, then the Issuer shall notify Escrow Agent in writing pursuant to Article "9" of this Agreement that the Offering has been terminated and the registration statement withdrawn, whereupon Escrow Agent shall, within two (2) business days, return the Escrow Funds to the Prospective Purchasers, and as to which four years have passed since delivery.
(f) The shall return the Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel Shares to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the CorporationSelling Stockholders.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 3 contracts
Samples: Escrow Agreement (Madison Enterprises Group, Inc.), Escrow Agreement (Madison Enterprises Group, Inc.), Escrow Agreement (Madison Enterprises Group, Inc.)
Duties of Escrow Agent. Acceptance by the Nothing contained herein shall be deemed to obligate Escrow Agent to release the Pledged Shares. Escrow Agent may consult with counsel of its duties own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The Parties hereby agree, jointly and severally, to indemnify Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expense or fee with which it may be threatened by reason of its acting as Escrow Agent under this Escrow Agreement is subject Agreement, except in the case of its own willful misconduct or gross negligence; and in connection therewith, to the following terms indemnify Escrow Agent against any and conditionsall expenses, which all parties to this Escrow Agreement agree shall govern including attorney’s fees and control with respect to the rightscosts of defending any action, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the suit or proceeding or resisting any claim. Escrow Agent shall be limited vested with a lien on all property deposited hereunder for indemnification, attorney’s fees and court costs regarding any suit, inter-pleader or otherwise, or any other expense, fee or charge of any character or nature, which may be incurred by Escrow Agent by reason of disputes arising between Noteholders and HCW as to those expressly set forth in the correct interpretation of this Escrow Agreement and notices given to Escrow Agent. Regardless of the notices aforesaid, Escrow Agent may hold the said property until and unless said additional expenses, fees and charges shall be fully paid. All of the terms and conditions in connection with Escrow Agent’s duties and responsibilities and the rights of Noteholders, HCW or anyone else, are contained in this instrument, and the Escrow Agent is not required to be familiar with the provision of any other instrument or agreement and shall not be subject to, nor obligated to recognize, charged with any responsibility or liability in connection with the observance or non-observance by anyone of the provisions of any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in natureinstrument or agreement. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act shall be protected in acting upon any written notice, instruction, direction, request, waiver, consent, receipt paper or other paper or document which may be submitted to it in good faith believes connection with its duties hereunder and which is believed by it to be genuine and what it purports to be have been signed or presented by the proper party or parties and the Escrow Agent shall be subject to have no liability or responsibility with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized shall be entitled to hold assume (i) the genuineness of all signatures on all documentation received by it; and preserve intact (ii) the Escrow Fund pending the settlement genuineness of any such controversy by final adjudication of a court all copies submitted to it as photostatic or courts of proper jurisdiction.
(d) The exact copies. Escrow Agent shall not be liable for required to institute or defend any error action or legal process involving any matter referred to herein which in any manner affects it or its duties or liabilities hereunder unless or until required to do so by Noteholders or HCW, and then only upon receiving full indemnity in an amount and of judgment or for such character as it shall require, against any act done or step taken or omitted by itand all claims, liabilities, judgments, attorney’s fees and other expenses of every kind in good faithrelation thereto, or for any mistake except in the case of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its own willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from shall not be bound in any way or affected by any notice of any modification, cancellation, abrogation or rescission of this Escrow Agreement, or any fact or circumstance affecting or alleged to affect the rights or liabilities of any other person, unless it has received written notice satisfactory to it, signed by Noteholders and against HCW. If Noteholders and HCW shall be in disagreement about the interpretation of these escrow provisions, or about the rights and obligations of, or the propriety of any and action contemplated by, Exxxxx Agent hereunder, Escrow Agent may, at its sole discretion, file an action in inter-pleader to resolve said disagreement. Escrow Agent shall be indemnified for all claims, losses, damages, liabilities and expensescosts, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent attorney’s fees in connection with its acceptance of the appointment as Escrow Agent hereunder such inter-pleader action, and shall be fully protected in suspending all or the performance a part of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties activities under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) until a final judgment in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationinter-pleader action is received.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 2 contracts
Samples: Escrow Agreement (HCW Biologics Inc.), Escrow Agreement (HCW Biologics Inc.)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable liable, except for any error of judgment its own gross negligence or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, except with respect to claims based upon such gross negligence or gross negligence. The Corporation willful misconduct that are successfully asserted against Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Fund, or any loss of interest incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, unless any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is determined an entity other than a natural person has full power and authority to have committed an intentional wrongful instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(d) Escrow Agent may act or pursuant to have been grossly negligent the advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrow Fund deposited hereunder but is serving as escrow holder only and instructions having only possession thereof. Any payments of such counselincome from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation with such counsel tax identification number certification, or non- resident alien certifications. This SECTION 3.1(e) and SECTION 3.1(b) shall be paid survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by the Corporationor delivered to it.
(g) Reference in this Escrow Agreement Agent shall not be called upon to advise any party as to the Registration Statement wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If, at that time, Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(i) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Fund or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, in which event Escrow Agent shall disburse the Escrow Fund in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for identification purposes only, the presenting party satisfactory to Escrow Agent to the effect that the order is final and its terms non-appealable. Escrow Agent shall act on such court order and conditions are not thereby incorporated hereinlegal opinion without further question.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Apartment Investment & Management Co), Stock Purchase Agreement (Apartment Investment & Management Co)
Duties of Escrow Agent. Acceptance It is understood and agreed by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to ---------------------- this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.as follows:
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement is not and the Escrow Agent shall not be subject to, nor obligated deemed to recognize, be a trustee for any other agreements between party for any purpose and is merely acting as a depository and in a ministerial capacity hereunder with the Corporation, Underwriter and any Subscriberlimited duties herein prescribed.
(b) The duties Escrow Agent does not have and shall not be deemed to have any responsibility in respect of any instruction, certificate or notice delivered to it or of the Escrow Agent are only Securities or any related Escrow Property other than faithfully to carry out the obligations undertaken in this Agreement and to follow the directions in such as are herein specifically instruction or notice provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 terms hereof.
(c) The Escrow Agent is not and shall not be under no obligations in respect of the Escrow Fund other than deemed to faithfully follow the instructions herein contained be liable for any action taken or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which omitted by it in good faith believes to be genuine and what it purports to be may rely upon, and act in accordance with the Escrow Agent advice of its counsel without liability on its part for any action taken or omitted in accordance with such advice. In any event, its liability hereunder shall be subject limited to no liability with respect to the formfor gross negligence, execution willful misconduct or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdictionbad faith on its part.
(d) The Escrow Agent shall not may conclusively rely upon and act in accordance with any certificate, instruction, notice, letter, telegram, cablegram on other written instrument believed by it to be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify genuine and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementsigned by the proper party or parties.
(e) The Company agrees (i) to pay the Escrow Agent shall return Agent's reasonable fees and to the Corporation any sums delivered reimburse it for its reasonable expenses, including attorney's fees, incurred in connection with duties hereunder and (ii) to save harmless, indemnify and defend the Escrow Agent pursuant for, from against any loss, damage, liability, judgment, cost and expense whatsoever, including counsel fees, suffered or incurred by it by reason of, or on account of, any misrepresentation made to it or its status or activities as Escrow Agent under this Agreement except for any loss, damage, liability, judgment, cost or expense resulting from gross negligence, willful misconduct or bad faith on the part of the Escrow Agreement for which Agent. The obligation of the Escrow Agent has not received release instructions pursuant to Section 4 hereofdeliver the Escrow Securities to either Dr. Sun or the Company shall be subject to the prior satisfaction upon demand from the Escrow Agent, of the Company's obligations to so save harmless, indemnify and as to which four years have passed since deliverydefend the Escrow Agent or otherwise pay its fees and expenses hereunder.
(f) The Escrow Agent may consult with, and obtain advice from, shall not be required to defend any legal counsel (proceeding which may be instituted against it in respect of the subject matter on this Agreement unless requested to do so by Dr. Sun or the Company and indemnified to the Escrow Agent's satisfaction against the cost and expense of such defense by the party requesting such defense. If any such legal proceeding is instituted against it, the Escrow Agent agrees promptly to give notice of such proceeding to Dr. Sun and the Company. The Escrow Agent shall not be counsel required to the Corporation) in the event institute legal proceedings of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationkind.
(g) Reference The Escrow Agent shall not, by act, delay, omission or otherwise, be deemed to have waived any right or remedy it may have either under this Agreement or generally, unless such waiver be in this writing, and no waiver shall be valid unless it is in writing, signed by the Escrow Agreement Agent, and only to the Registration Statement is extent expressly therein set forth. A waiver by the Escrow Agent under the term of this Agreement shall not be construed as a bar to, or waiver of, the same or any other such right or remedy which it would otherwise have on any other occasion.
(h) The Escrow Agent may resign as such hereunder by giving 30 days written notice thereof to Dr. Sun and the Company. Within 20 days after receipt of such notice, the Company shall furnish to the Escrow Agent written instructions for identification purposes onlythe release of the Escrow Securities and any related Escrow Property (if such shares, options and its property, if any, have not yet been released pursuant to paragraph 4 hereof) to a substitute Escrow Agent which (whether designated by written instructions from the Company or in the absence thereof by instructions from a court of competent jurisdiction to the Escrow Agent) shall be a bank or trust company organized and doing business under the laws of the United States or any state thereof. Such substitute Escrow Agent shall thereafter hold any Escrow Securities and any related Escrow Property received by it pursuant to the terms of this Agreement and conditions are otherwise act hereunder as if it were the Escrow Agent originally named herein. The Escrow Agent's duties and responsibilities hereunder shall terminate upon the release of all shares then held in escrow according to such written instruction or upon such delivery as herein provided. The Agreement shall not thereby incorporated hereinotherwise be assignable by the Escrow Agent without the prior written consent of the Company.
Appears in 2 contracts
Samples: Escrow Agreement (Digital Video Systems Inc), Escrow Agreement (Digital Video Systems Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject toliable to any person or entity for any action taken in good faith and believed by Escrow Agent to be authorized or within the rights and powers conferred upon Escrow Agent under this Agreement. Escrow Agent shall also have full and complete authorization and protection for any omission or any action taken, nor obligated or suffered by Escrow Agent, in good faith. Escrow Agent shall have no duties or obligations other than as expressly stated herein, and shall be protected and not liable for acting upon any notice, certificate or other communication not only with respect to recognizeits execution, validity and effectiveness of such notice’s, certificate’s, or other communication’s provisions, but also as to the truth and accuracy of any information therein contained, which notice, certificate or other agreements between the Corporationcommunication Escrow Agent shall have, Underwriter in good faith, believed to have been genuine or valid and any Subscriberwhich Escrow Agent, in good faith, believed to have been signed or presented by a proper person or persons.
(b) The Escrow Agent shall not be bound by any notice or demand with respect hereto, or any waiver, modification, amendment, termination or revision of this Agreement unless signed by each of the Company and Purchasers and delivered in writing to Escrow Agent and, if the duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The affected, unless Escrow Agent shall have given Escrow Agent's primary duty ’s prior written consent thereto. Escrow Agent shall not be liable or responsible for anything done or omitted to be done by Escrow Agent in good faith, it being understood that Escrow Agent’s liability hereunder shall be limited solely to keep custody of willful misconduct or gross negligence on its part. Escrow Agent may rely conclusively on, and safeguard the shall be protected from acting or refraining from acting upon, any written notice, instruction or request furnished to Escrow Fund during the period of the escrow, Agent hereunder and reasonably believed by Escrow Agent to invest monies held in the Escrow Fund in accordance with Section 2 hereof be genuine and to make disbursements from have been signed or presented by the Escrow Fund in accordance with Section 4 hereof.
(c) The proper party or parties. Escrow Agent shall be under no obligations duty to inquire into the authority of any person acting in respect connection herewith or into the genuineness of any signature.
(c) Escrow Agent or any successor, which is hereafter appointed, may, at any time, resign by giving written notice to each of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely Company and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine Purchasers and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion discharged of the Escrow Agent, ’s duties under this Agreement upon the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then appointment of a successor escrow agent. In the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement event of any such controversy by final adjudication resignation, a successor escrow agent shall be promptly appointed upon the mutual written agreement of the Company and Purchasers. Any such successor escrow agent shall deliver to the Company and each of the Company and Purchasers a court or courts written instrument accepting such appointment hereunder and thereupon the successor escrow agent shall succeed to all the rights and duties of proper jurisdiction.
(d) The Escrow Agent and shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify entitled to receive the Escrowed Documents and hold the Escrow Agent harmless from and against any Funds and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred other properties then held by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which Agreement. In the event that a successor escrow agent is not appointed by the Company and Purchasers within 30 calendar days of such written notice, then Escrow Agent has shall have the right, but not received release instructions the duty, to bring an interpleader action in a court of competent jurisdiction to have a successor agent appointed and deposit the Escrowed Documents and Funds and all the other properties then held by Escrow Agent pursuant to Section 4 hereof, this Agreement with such court and as to which four years have passed since delivery.
(f) The shall be reimbursed by the Company and Purchasers for all of the costs and expenses of Escrow Agent may consult with, with respect to such interpleader action. The Company and obtain advice from, legal counsel Purchasers agree that any such action shall be brought only in a court of the State of New York located in New York or Nassau County or in the Federal Courts for the Southern or Eastern District of New York (which may not be counsel to courts are acknowledged by both the Corporation) in the event Sellers and Purchasers as courts of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationcompetent jurisdiction).
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Tyme Technologies, Inc.), Securities Purchase Agreement (Tyme Technologies, Inc.)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment actions or omissions hereunder, except for any act done its own gross negligence or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, except with respect to claims based upon such gross negligence or gross negligence. The Corporation willful misconduct that are successfully asserted against Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' fees’ fees and disbursements, which may be imposed upon arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or reinvest- ment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Fund or any loss of interest incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, unless any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is determined an entity other than a natural person has full power and authority to have committed an intentional wrongful instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(d) Escrow Agent may act or pursuant to have been grossly negligent the advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrow Fund deposited hereunder but is serving as escrow holder only and instructions has only possession thereof. Any pay- ments of such counselincome from the Escrow Fund shall be subject to withholding regu- lations then in force with respect to United States taxes. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation with such counsel tax identification number certification, or nonresident alien certifica- tions. This Section 5(e) and Section 5(b) shall be paid survive notwithstanding any ter- mination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or collectability of any security or other document or instrument held by the Corporationor deliv- ered to it.
(g) Reference in this Escrow Agreement Agent shall not be called upon to advise any party as to the Registration Statement wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Es- crow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is for identification purposes onlythirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If, at that time, Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent’s sole responsibility after that time shall be to retain and its terms and conditions are not thereby incorporated hereinsafeguard the Escrow Fund until receipt of a designa- tion of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final, nonappealable order of a court of competent jurisdiction.
Appears in 2 contracts
Samples: Noncompetition, Nondisclosure and Nonsolicitation Agreement, Noncompetition, Nondisclosure and Nonsolicitation Agreement
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject toliable, nor obligated to recognizeexcept for its own gross negligence or willful misconduct and, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability except with respect to the form, execution claims based upon such gross negligence or validity thereof. If, in the opinion of the willful misconduct that are successfully asserted against Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold other parties hereto shall jointly and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall severally indemnify and hold the Escrow Agent harmless from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Fund, or any loss of interest incident to any such delays.
(b) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, unless any fact stated therein or the propriety or validity of the service thereof. Escrow Agent xxx act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undesigned representative of any party hereto which is determined an entity other than a natural person has full power and authority to have committed an intentional wrongful instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(c) Escrow Agent may act or pursuant to have been grossly negligent the advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(d) Escrow Agent does not have any interest in the written opinion Escrow Fund deposited hereunder but is serving as escrow holder only and instructions of such counselhaving only possession thereof. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation tax identification number certification, or non-resident alien certifications. This Section 4(d) and Section 4(a) shall survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(e) Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction pursuant to an interpleader complaint or other proceeding initiated before such court, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a success Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(f) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund, Escrow Agent shall retain the Escrow Fund until Escrow Agent shall have received (i) a written decisions by an arbitration tribunal as described in Section 14.02 of the Purchase Agreement, or (ii) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Fund or (iii) a written agreement executed by Buyer and Sellers directing delivery of the Escrow Fund, in which event Escrow Agent shall disbursement the Escrow Fund in accordance with such counsel shall be paid by the Corporationorder or agreement.
(g) Reference Buyer shall pay Escrow Agent compensation for the services to be rendered by Escrow Agent hereunder as determined by mutual agreement of the parties hereto. Buyer shall reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in this Escrow Agreement to the Registration Statement is for identification purposes onlyperformance of its duties hereunder (including reasonable fees, expenses and disbursements of its terms and conditions are not thereby incorporated hereincounsel).
Appears in 2 contracts
Samples: Escrow Agreement (Acme Intermediate Holdings LLC), Escrow Agreement (Acme Television LLC)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's ’s primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' ’ fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 2 contracts
Samples: Escrow Agreement (Intervest Mortgage Corp), Escrow Agreement (Intervest Bancshares Corp)
Duties of Escrow Agent. Acceptance The parties agree as follows: ----------------------
a. The Escrow Agent is not and shall not be deemed to be an agent for any other party for any purpose and is merely acting as a depository and in a ministerial capacity hereunder with the limited duties herein prescribed.
b. The Escrow Agent does not have and shall not be deemed to have any responsibility in respect of any instructions, certificate or notice delivered to it other than to faithfully carry out the obligations undertaken in this Agreement and to follow the directions in such instructions or notice in accordance with the terms hereof.
c. The Escrow Agent is not and shall not be deemed to be liable for any action taken or omitted by it in good faith and may rely on, and act in accordance with, the advice of its counsel without liability on its part for any action taken or omitted in accordance with such advice. In any event, its liability hereunder shall be limited to liability for gross negligence, willful misconduct, or bad faith on its part.
d. The Escrow Agent may conclusively rely on and act in accordance with any certificate, instruction, notice, letter, telegram, cablegram, or other written instrument believed by it to be genuine and to have been signed by the proper party or parties.
e. The Escrow Agent may apply for advice of counsel of its choice and may rely upon such advice or may act or refrain from acting in accordance with such advice.
f. The Buyer shall pay all of the Escrow Agent's fees and costs in setting up and servicing the Escrow Account during the term of this Agreement. In addition, the Buyer and Seller Parties shall reimburse the Escrow Agent of for its duties reasonable fees and expenses, including attorneys' fees, incurred to save harmless, indemnify, and defend the Escrow Agent for, from, and against any loss, damages, liability, judgment, costs, and expenses, whatsoever, including counsel fees, suffered or incurred by it by reason of, or on account of, any misrepresentations made to it or its status or activities as Escrow Agent under this Escrow Agreement is subject to except for any loss, damage, liability, judgment, costs, or expenses resulting from gross negligence, willful misconduct, or bad faith on the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities part of the Escrow Agent.
(a) The duties and responsibilities of g. If any legal proceeding is instituted against it, the Escrow Agent shall be limited agrees promptly to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated give notice of such proceeding to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties all of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be other parties to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for required to institute legal proceedings of any error of judgment or for any act done or step taken or omitted kind.
h. The Escrow Agent shall not, by itact, in good faithdelay, omission, or for otherwise, be deemed to have waived any mistake of fact right or law, or for anything which remedy it may in good faith do have either under this Agreement or refrain from doing in connection herewithgenerally, unless caused such waiver be in writing, and no waiver shall be valid unless it is in writing, signed by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from Agent, and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon then only to the Escrow Agent or incurred extent expressly therein set forth. A waiver by the Escrow Agent in connection with its acceptance under the terms of this Agreement shall not be construed as a bar to, or waiver of, the same or any other such right or remedy which it would otherwise have on any other occasion.
i. The Escrow Agent may resign as such hereunder by giving written notice of such resignation to the Buyer and Seller Parties. Upon receipt of such notice, the Buyer and Seller Parties shall furnish to the Escrow Agent written instructions for the release of the appointment Escrow Funds (or such portion thereof as may then be in escrow) to a substitute Escrow Agent which (whether designated by written instructions from the parties hereto jointly or, in the absence thereof, by instructions from a court of competent jurisdiction to the Escrow Agent) shall be a law firm doing business in the State of Utah, an attorney licensed to practice in the State of Utah, or a title company, bank, or trust company organized and doing business under the laws of the United States or any state thereof. Such substitute Escrow Agent shall thereafter hold the Escrow Funds received by it pursuant to the terms of this Agreement and otherwise act hereunder as if it were the Escrow Agent originally named herein. The Escrow Agent's duties and responsibilities hereunder shall terminate upon the release of all of the Escrow Funds then held in escrow according to such written instruction or upon such delivery as herein provided. This Agreement shall not otherwise be assignable by the performance Escrow Agent without the prior written consent of its duties hereundereach of the parties hereto.
j. The Escrow Agent hereby acknowledges receipt of a copy of the Asset Purchase Agreement, unless but, except for reference thereto for certain terms and conditions not set forth herein, the Escrow Agent is determined to have committed an intentional wrongful act not charged with any duty or to have been grossly negligent with respect to its duties obligation arising under any such documents or any other agreements between any of the other parties hereto, and the Escrow Agent's responsibilities, as Escrow Agent, shall be governed solely by this Escrow Agreement.
(e) k. The Buyer and Seller Parties expressly agree that Escrow Agent shall return to has the Corporation any sums delivered to absolute right at the Escrow Agent Agent's election to file an action in interpleader and to deposit with the clerk of the court all documents and funds held pursuant to this Agreement. In the event such action is filed, the Buyer and Seller Parties jointly and severally agree to pay the Escrow Agreement for Agent's cancellation charges and costs, expenses and reasonable attorneys' fees which the Escrow Agent has not received release instructions pursuant is required to Section 4 hereofexpend or incur in the interpleader action, the amount thereof to be fixed and as judgment therefor to which four years have passed since delivery.
(f) The be rendered by the court in such action. Upon filing the action, the Escrow Agent may consult with, shall thereupon be fully released and obtain advice from, legal counsel (which may not be counsel discharged from all obligations to the Corporation) in the event of further perform any dispute duties or questions as to the construction of any obligations otherwise imposed by this Agreement. The rights of the provisions hereof Escrow Agent under paragraphs 5.g. and k. and 9. shall survive any termination or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions expiration of such counsel. The fees for consultation with such counsel shall be paid by the Corporationthis Agreement.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Fields MRS Original Cookies Inc), Asset Purchase Agreement (Pretzel Time Inc)
Duties of Escrow Agent. Acceptance It is understood and agreed by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.as follows:
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement is not and the Escrow Agent shall not be subject to, nor obligated deemed to recognize, be an agent for any other agreements between party for any purposes and is merely acting as a depository and in a ministerial capacity hereunder with the Corporation, Underwriter and any Subscriberlimited duties herein prescribed.
(b) The duties of the Escrow Agent are only does not have and shall not be deemed to have any responsibility in respect of any instructions, certificate, or notice delivered to him other than to faithfully carry out the obligations undertaken in this Agreement and to follow the directions in such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund instructions or notice in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 terms hereof.
(c) The Escrow Agent is not and shall not be under no obligations deemed to be liable for any action taken or omitted by him in respect good faith and may rely on, and act in accordance with, the advice of the Escrow Fund other than to faithfully follow the instructions herein contained his counsel without liability on his part for any action taken or delivered to the Escrow Agent omitted in accordance with this Escrow Agreementsuch advice. The Escrow Agent may rely and act upon In any written noticeevent, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent his liability hereunder shall be subject limited to no liability with respect to the formfor gross negligence, execution willful misconduct, or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdictionbad faith on his part.
(d) The Escrow Agent may conclusively rely on and act in accordance with any certificate, instruction, notice, letter, telegram, cablegram or other written instrument believed by him to be genuine and to have been signed by the proper party or parties.
(e) Escrow Agent may apply for advice of counsel of his choice and may rely upon such advice or may act or refrain from acting in accordance with such advice.
(f) Escrow Agent shall be entitled to reimbursement from the parties of (i) Escrow Agent's reasonable fees and reimbursement of his reasonable expenses, including attorneys' fees in connection with duties hereunder and (ii) the cost to save harmless, indemnify and defend Escrow Agent for, from, and against any loss, damages, liability, judgment, costs and expenses whatsoever, including counsel fees, suffered or incurred by him by reason of, or on account of, any misrepresentations made to him or his status or activities as Escrow Agent under this Agreement, except for any loss, damages, liability, judgment, costs, or expenses resulting from gross negligence, willful misconduct, or bad faith on the part of Escrow Agent.
(g) If any legal proceeding is instituted against him, Escrow Agent agrees promptly to give notice of such proceeding to EuroGas and BRRL. Escrow Agent shall not be liable for required to institute legal proceedings of any error kind.
(h) Escrow Agent shall not, by act, delay, omission, or otherwise, be deemed to have waived any right or remedy he may have either under this Agreement or generally, unless such waiver be in writing, and no waiver shall be valid unless it is in writing, signed by Escrow Agent, and then only to the extent expressly therein set forth. A waiver by Escrow Agent under the terms of judgment this Agreement shall not be construed as a bar to, or for waiver of, the same or any act done other such right or step taken or omitted remedy which he would otherwise have on any other occasion.
(i) Escrow Agent may resign as such hereunder by itgiving 30 days written notice thereof to EuroGas and BRRL. Within 20 days after receipt of such notice, EuroGas and BRRL shall furnish to Escrow Agent written instructions regarding the release of the remaining Escrowed Amount to a substitute escrow agent designated by written instructions from EuroGas and BRRL jointly, or, in good faiththe absence thereof, by instructions from a court of competent jurisdiction to Escrow Agent. Such substitute Escrow Agent shall be a title company, bank, or for any mistake trust company organized and doing business under the laws of fact or law, or for anything which the state of Utah and shall thereafter hold the Escrowed Amount received by it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify pursuant to the terms of this Agreement and hold otherwise act hereunder as if it were the Escrow Agent harmless from originally named herein. Escrow Agent's duties and against any responsibilities hereunder shall terminate upon the release of all property then held in escrow according to such written instruction or upon such delivery as herein provided. This Agreement shall not otherwise be assignable by Escrow Agent without the prior written consent of EuroGas and all claims, losses, damages, liabilities RRRT.
(j) EuroGas and expenses, including reasonable attorneys' fees, which may be imposed upon BRRL shall each pay one-half of the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementfees and other charges.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 2 contracts
Samples: Asset Exchange Agreement (Eurogas Inc), Asset Exchange Agreement (Eurogas Inc)
Duties of Escrow Agent. Acceptance by (a) Escrow Agent shall not be under any duty to give the Escrow Agent Shares held by it hereunder any greater degree of care than it gives its duties under own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement is subject to the following terms and conditionsAgreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) Escrow Agent shall not be liable, which all parties to this Escrow Agreement agree shall govern and control except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against Escrow Agent, the rightsother parties hereto shall jointly and severally indemnify and hold harmless Escrow Agent (and any successor Escrow Agent) from and against any and all losses, dutiesliabilities, liabilities claims, actions, damages and immunities expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of such amounts, or any loss of interest incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(ad) The duties and responsibilities of the Escrow Agent shall be limited may act pursuant to those expressly set forth in the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the Escrow Shares deposited hereunder but is serving as escrow holder only and having only possession thereof. Escrow Agent has no setoff rights against the Escrow Shares under Section 6(b) or any other reason. Any payments of income from the Escrow Shares shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or non-resident alien certifications. Sections 6(e) and 6(b) of this Escrow Agreement shall survive notwithstanding any termination of this Escrow Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(g) Escrow Agent shall not be subject to, nor obligated called upon to recognize, advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other agreements between the Corporation, Underwriter and any Subscriberproperty deposited hereunder.
(bh) The duties of Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Shares to any successor Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial jointly designated by the other parties hereto in nature. The Escrow Agent's primary duty shall be writing, or to keep custody any court of and safeguard the Escrow Fund during the period of the escrowcompetent jurisdiction, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The whereupon Escrow Agent shall be under no discharged of and from any and all further obligations arising in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance connection with this Escrow Agreement. The resignation of Escrow Agent may rely and act upon any will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect notice of resignation to the form, execution or validity thereofother parties hereto. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the If at that time Escrow Agent has not received release instructions pursuant a designation of a successor Escrow Agent, Escrow Agent’s sole responsibility after that time shall be to Section 4 hereof, retain and as to which four years have passed since deliverysafeguard the Escrow Shares until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(fi) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in In the event of any dispute disagreement between the other parties hereto resulting in adverse claims or questions demands being made in connection with the Escrow Shares or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the construction Escrow Shares until Escrow Agent shall have received (i) a final non-appealable order of any a court of competent jurisdiction directing delivery of the provisions hereof Escrow Shares or its duties hereunder(ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Shares, and it in which event Escrow Agent shall incur no liability in acting in good faith disburse the Escrow Shares in accordance with the written opinion and instructions of such counselorder or agreement. The fees for consultation with such counsel Any court order shall be paid accompanied by a legal opinion by counsel for the Corporationpresenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall act on such court order and legal opinion without further question.
(gj) Reference The Company shall pay the Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of $1,000 at the time of execution of this Escrow Agreement and $1,500 annually thereafter and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(k) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent’s name or the Registration Statement is rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties’ behalf unless Escrow Agent shall first have given its specific written consent thereto.
(l) The other parties hereto authorize Escrow Agent, for identification purposes onlyany securities held hereunder, to use the services of any United States central securities depository it reasonably deems appropriate, including, without limitation, the Depositary Trust Company and its terms and conditions are not thereby incorporated hereinthe Federal Reserve Book Entry System.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Enterprise Financial Services Corp), Escrow Agreement (Enterprise Financial Services Corp)
Duties of Escrow Agent. Acceptance by (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties shall be implied. Escrow Agent shall not be liable for actions or omissions under this Agreement, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against Escrow Agent in a court of competent jurisdiction. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Buyer and Seller shall jointly and severally indemnify and hold harmless Escrow Agent and its duties under directors, officers, agents and employees (and any successor Escrow Agent) from and against, and shall pay to Escrow Agent the amount of, and reimburse Escrow Agent for, any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with this Escrow Agreement is subject Agreement, except to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to extent arising from the rights, duties, liabilities and immunities gross negligence or willful misconduct of the Escrow Agent.
(ab) The duties and responsibilities of the Escrow Agent shall be limited entitled to those expressly set forth in rely upon any order, judgment, certification, demand, notice, instrument, or other writing delivered to it pursuant to this Escrow Agreement and without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent shall not may act in reliance upon any instrument or signature believed by it to be subject to, nor obligated genuine and may assume that the person purporting to recognize, make any other agreements between statement or execute any document in connection with the Corporation, Underwriter and any Subscriber.
(b) The duties of the provisions hereof has been duly authorized to do so. Escrow Agent are only such as are herein specifically provided may conclusively presume that the representative of any party to this Agreement has full power and such duties are purely ministerial in nature. The authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be under no obligations in respect liable only for the careful selection of the Escrow Fund any such agent or attorney) and may consult with counsel, accountants and other than skilled persons to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreementbe selected and retained by it. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes pursuant to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability advice of counsel with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or matter relating to this Escrow Agreement, then the Escrow Agent is authorized to hold Agreement and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with such advice.
(d) Except as set forth in Paragraph 3(a), Escrow Agent does not have any interest in the Escrow Fund but is serving as escrow holder only and has only possession thereof. Any payments of income from the Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The parties will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax identification number certification or nonresident alien certifications.
(e) Escrow Agent may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by Buyer, Landlord and the Selling Parties Representative in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction), or (ii) the day which is 30 days after the date of delivery of its written opinion notice of resignation to the other parties. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent’s sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties or a final nonappealable order of a court of competent jurisdiction.
(f) In the event of any disagreement among the other parties resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take under this Agreement, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) joint written instructions of Buyer, Landlord and the Selling Parties Representative, or (ii) a final nonappealable order of a court of competent jurisdiction. Escrow Agent shall act on such counsel. The fees for consultation with such counsel shall be paid by the Corporationwritten instructions or court order without further question.
(g) Reference Buyer and Seller shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent under this Agreement as set forth in Schedule B and agree to reimburse Escrow Agent for all reasonable expenses, disbursements, and advances incurred or made by Escrow Agent in the performance of its duties (including reasonable fees, expenses, and disbursements of its counsel). Any such compensation and reimbursement to which Escrow Agent is entitled shall be borne 50% by Buyer and 50% by the Selling Parties Representative in its representative capacity. Any fees or expenses of Escrow Agent or its counsel that are not paid as provided for in this Agreement may be taken from any property held by Escrow Agreement Agent under this Agreement; provided that Escrow Agent obtains the prior written consent of Landlord for such taking. Notwithstanding anything to the Registration Statement is contrary, in no event will Landlord be liable for identification purposes onlypaying or satisfying any portion of Escrow Agent’s compensation for the services to be rendered by Escrow Agent under this Agreement.
(h) In the event that (i) any dispute shall arise between the parties with respect to the disposition or disbursement of the Escrow Fund, or (ii) Escrow Agent shall be uncertain as to how to proceed in a situation not explicitly addressed by the terms of this Agreement, whether because of conflicting demands by the other parties or otherwise, Escrow Agent shall be permitted to interplead the Escrow Fund held under this Agreement into a court of competent jurisdiction and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets. The parties other than Escrow Agent further agree to pursue any redress or recourse in connection with such a dispute without making Escrow Agent a party to same.
(i) Escrow Agent shall have only those duties as are specifically provided in this Agreement, which shall be deemed purely ministerial in nature, and its shall under no circumstance be deemed a fiduciary for any of the other parties. Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions are not thereby incorporated hereinof any other agreement, instrument, or document between the other parties in connection herewith, including the Purchase Agreement. This Agreement sets forth all matters pertinent to the escrow contemplated by this Agreement, and no additional obligations of Escrow Agent shall be inferred from the terms of this Agreement or any other agreement.
(j) This Paragraph 6 shall survive notwithstanding any expiration or termination of this Agreement or the resignation of Escrow Agent.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Granite City Food & Brewery LTD)
Duties of Escrow Agent. Acceptance by a. In connection with the Rule 419 offering, the Escrow Agent shall:
i. Receive and hold all shares of its duties under this Escrow Agreement is subject Common Stock issued in connection with the offering pursuant to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and in accordance with Rule 419;
ii. Deposit the gross proceeds from the offering promptly into an escrow account ("Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between Account") maintained by an "insured depository institution," or into a separate bank account; and
iii. Maintain in good faith and in the Corporation, Underwriter and any Subscriber.
(b) The duties regular course of business Escrow Account records of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard insured depository institution, or separate bank account, providing that the Escrow Fund during the period of the escrow, to invest monies held funds in the Escrow Fund in accordance with Section 2 hereof Account are held for the benefit of the purchasers and showing the name and interest of each party to make disbursements from the Escrow Fund in accordance with Section 4 hereofaccount.
(c) b. The Escrow Agent shall be under no obligations in respect of responsible for establishing the Escrow Fund other than Account into which the securities to faithfully follow be sold and the instructions herein contained or delivered funds to be received in connection with Selling Shareholders proposed offering shall be deposited and held until an acquisition meeting the Escrow Agent criteria specified in accordance with this Escrow Agreement. Rule 419 is completed.
c. The Escrow Agent may rely and is not responsible for any act upon any written noticeor failure to act on its part, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, except in the opinion case of the Escrow Agent, the instructions it receives are ambiguous, uncertain its own willful misconduct or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) gross negligence. The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or law for anything which it may in good faith do or refrain from doing in connection herewiththerewith, unless caused except for its own willful misconduct.
d. The Escrow Agent is not a party to or bound by its willful misconduct any agreement pertaining to the transaction or gross negligence. The Corporation shall indemnify and hold any other agreement between the Parties, except this Agreement.
e. In the event of any disagreement between the Parties or any person resulting in adverse claims or demands being made in connection with or for any of the amount in escrow, the Escrow Agent harmless from shall be entitled, at its option, to refuse to comply with any such claim or demand so long as such disagreement shall continue, and against any and all claims, losses, damages, liabilities and expensesto initiate a legal proceeding, including reasonable attorneys' feesbut not limited to an impleader action, to have the dispute resolved. Until resolution of any such disagreement, Escrow Agent may refuse to deliver or otherwise dispose of funds until:
i. The rights of the adverse claimant have been finally adjudicated in the court assuming and having jurisdiction of the parties and the amount in escrow; or
ii. The differences shall have been adjusted by agreement among the affected Parties and the Escrow Agent shall have been notified thereof in writing signed by the interested Parties.
f. The duties of the Escrow Agent hereunder are entirely ministerial, being limited to receiving, holding, and disbursing the amount in escrow as provided herein. The Escrow Agent may rely upon and will be protected in acting upon any paper or other document which may be imposed upon the Escrow Agent or incurred by the Escrow Agent submitted to it in connection with its acceptance of the appointment as Escrow Agent duties hereunder or the performance of its duties hereunder, unless the Escrow Agent and which is determined believed by it to have committed an intentional wrongful act or be genuine and to have been grossly negligent signed by the proper party or parties or their representatives, and shall have no liability or responsibility with respect to its duties under this Escrow Agreementthe form, execution, or validity thereof.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 2 contracts
Samples: Escrow Agreement (Westnet Communication Group Inc), Escrow Agreement (Westnet Communication Group Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) 3.1 The Escrow Agent shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faithor any action suffered by it to be take nor omitted, or for any mistake of fact or law, or for anything which it may in good faith do and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or refrain from doing in connection herewith, unless caused advice of counsel (including counsel chosen by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from Agent), statement, instrument, report or other paper or document (not only as to its due execution and against the validity and effectiveness of its provisions, but also as to the truth and acceptability of any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, information therein contained) which may be imposed upon the Escrow Agent or incurred is believed by the Escrow Agent in connection with its acceptance of to be genuine and to be signed or presented by the appointment as Escrow Agent hereunder proper person or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) persons. The Escrow Agent shall return to the Corporation not be bound by any sums notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement unless evidenced by a writing delivered to the Escrow Agent pursuant to this Escrow Agreement for which signed by the proper party or parties and, if the duties or rights of the Escrow Agent has not received release instructions pursuant to Section 4 hereofare affected, and as to which four years unless it shall have passed since deliverygiven its prior written consent thereto.
(f) 3.2 The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel responsible for the sufficiency or accuracy, the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property paid or delivered by the Escrow Agent pursuant to the Corporation) provisions hereof. In no event shall the Escrow Agent be liable with regard to the financial stability of any banking institution with which it deposits such funds.
3.3 The Escrow Agent shall have the right to assume, in the event absence of any dispute or questions as written notice to the construction contrary from the proper person or persons, that a fact or an event by reason of which an action would or might be taken by the Escrow Agent does not exist or has not occurred, without incurring liability for any of the provisions hereof action taken or its duties hereunderomitted, and it shall incur no liability in acting in good faith and in accordance with the written opinion and instructions exercise of its own best judgment, in reliance upon such counsel. The fees for consultation with such counsel shall be paid by the Corporationassumption.
3.4 From time to time on and after the date hereof, Accres, Lexicon and Sellers shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request (git being understood that the Escrow Agent shall have no obligation to make any such request) Reference in to carry out more effectively the provisions and purposes of this Escrow Agreement Agreement, to the Registration Statement evidence compliance herewith or to assure itself that it is for identification purposes only, and its terms and conditions are not thereby incorporated hereinprotected in acting hereunder.
Appears in 2 contracts
Samples: Acquisition Agreement (Lexicon United Inc), Acquisition Agreement (Lexicon United Inc)
Duties of Escrow Agent. Acceptance The acceptance by the Escrow Agent of its duties as such under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement SNH and CLJ hereby agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.:
(a) The duties Escrow Agent acts hereunder as a depositary only, and responsibilities is not responsible or liable in any manner whatever for any investment made pursuant to the provisions of Section 4 or any failure, refusal or inability of the Escrow Agent shall be limited Bank to those expressly set forth in this Escrow Agreement and release or make payment pursuant to the Escrow Agent shall not be subject toAgent's direction of said Escrow Fund, nor obligated to recognize, any other agreements between including by reason of insolvency or bankruptcy of the Corporation, Underwriter and any SubscriberBank.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall not be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act liable for acting upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper instrument or document which it the Escrow Agent in good faith believes to be genuine and what it purports to be be.
(c) It is understood and agreed that the duties of the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, hereunder are purely ministerial in the opinion of the Escrow Agent, the instructions nature and that it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by itjudgment, in good faith, or for any mistake of fact or law, or any act done or omitted to be done, except for anything which it may in good its own willful misconduct, breach of fiduciary duty, bad faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligencenegligence or that of its officers, directors, employees and agents. The Corporation Escrow Agent's determination as to whether an event or condition has occurred, or been met or satisfied, or as to whether a provision of this Escrow Agreement has been complied with, or as to whether sufficient evidence of the event or condition or compliance with the provision has been furnished to it, shall indemnify and hold not subject the Escrow Agent harmless from to any claim, liability or obligation whatsoever, even if it shall be found that such determination was improper and against any and all claimsincorrect, lossesprovided, damagesonly, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon that the Escrow Agent or incurred by the Escrow Agent in connection with and its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunderofficers, unless the Escrow Agent is determined to have committed an intentional wrongful act or to directors, employees and agents shall not have been grossly negligent with respect to its duties under this Escrow Agreementguilty of willful misconduct, breach of fiduciary duty, bad faith or gross negligence in making such determination.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(fd) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) including its own officers, employees and partners in the event of any dispute or questions question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(ge) Reference In the event of any disagreement or lack of agreement between SNH and CLJ of which the Escrow Agent has knowledge, resulting or which might result in adverse claims or demands with respect to the Escrow Fund, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any claims or demands on it with respect thereto until such matter shall be resolved, and in so refusing, the Escrow Agent may elect to make no delivery or other disposition of the Escrow Fund, and in so doing the Escrow Agent shall not be or become liable in any way to either SNH or CLJ for its failure or refusal to comply with such claims or demands, and it shall be entitled to continue so to refrain from acting, and so to refuse to act, until all such claims or demands (i) shall have been finally determined by a court of competent jurisdiction, or (ii) shall have been resolved by the agreement of SNH and CLJ and the Escrow Agent shall have been notified thereof in writing.
(f) The Escrow Agent may resign at any time upon giving ten (10) days' notice to SNH and CLJ and may appoint a successor escrow agent hereunder so long as such successor shall accept and agree to be bound by the terms of this Escrow Agreement and shall be acceptable to SNH and CLJ. It is understood and agreed that the Registration Statement is for identification purposes only, and its Escrow Agent's resignation shall not be effective until a successor escrow agent agrees to be bound by the terms and conditions are not thereby incorporated hereinof this Escrow Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Senior Housing Properties Trust), Stock Purchase Agreement (Five Star Quality Care Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any other agreements between the Corporation, Underwriter and any Subscribergreater degree of care than it gives its own similar property.
(b) The duties Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent may conclusively presume, at any time prior to the 2007 annual meeting of the stockholders of the Company, that any two Outside Independent Directors of the Company specified on Schedule C attached hereto (acting jointly) and, at any time after the the 2007 annual meeting of the stockholders of the Company, two members of the Company’s audit committee (acting jointly) have the full power and authority to instruct the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in natureon behalf of the Company unless written notice to the contrary is delivered by the Company to the Escrow Agent. The Escrow Agent's primary duty Company shall be provide prompt written notice to keep custody of and safeguard the Escrow Fund during Agent and shall deliver an updated Schedule C upon the period election of successor Outside Independent Directors pursuant to the Governance Agreement, and after the 2007 annual meeting of the escrowstockholders of the Company, the Company shall provide a schedule reflecting the members of the audit committee from time to invest monies held time in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereofoffice.
(c) The Escrow Agent shall provide the Shareholders’ Representative and the Company with quarterly reports of the status of the Escrow Fund, and shall permit the Shareholders’ Representative and representatives of the Company to inspect and obtain copies of the records of the Escrow Agent regarding the Escrow Fund, during normal business hours and upon one business day’s prior written notice.
(d) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice.
(e) The Escrow Agent does not have any interest in the Escrow Fund deposited hereunder but is serving as escrow holder only to administer the Escrow Fund in accordance with the terms hereof.
(f) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(g) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) The Escrow Agent may resign as the Escrow Agent by notice to the other parties hereto (the “Resignation Notice”). If, prior to the expiration of sixty (60) business days after the delivery of the Resignation Notice, the Escrow Agent shall not have received written instructions from the Shareholders’ Representative and the Company designating a banking corporation or trust company organized either under no obligations the laws of the United States or of any state as successor escrow agent and consented to in respect writing by such successor escrow agent, the Escrow Agent may apply to a court of competent jurisdiction to appoint a successor escrow agent. Alternatively, if the Escrow Agent shall have received such written instructions from the Company and the Shareholders’ Representative, it shall promptly transfer the Escrow Fund to such successor escrow agent. Upon the appointment of a successor escrow agent and the transfer of the Escrow Fund other than to faithfully follow thereto, the instructions herein contained or delivered to duties of the Escrow Agent hereunder shall terminate.
(i) In the event of any disagreement between the other parties hereto resulting in accordance adverse claims or demands being made in connection with this the Escrow Agreement. The Fund, or in the event that the Escrow Agent may rely and act upon any written noticeis in doubt as to what action it should take hereunder, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject entitled to no (a) retain the Escrow Fund until the Escrow Agent shall have received (i) judgment upon an award rendered by a court of competent jurisdiction directing delivery of the Escrow Fund (or portion thereof), or (ii) a written agreement executed by the Shareholders’ Representative and the Company directing delivery of the Escrow Fund (or portion thereof); or (b) be permitted to interplead all of the Escrow Fund held hereunder into a court of competent jurisdiction described in Section 10.9 of the Merger Agreement, and thereafter be fully relieved from any and all liability or obligation with respect to the form, execution or validity thereofsuch interpleaded assets. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then The parties hereto other than the Escrow Agent is authorized further agree to hold and preserve intact pursue any redress or recourse in connection with such a dispute, without making the Escrow Fund pending the settlement of any such controversy by final adjudication of Agent a court or courts of proper jurisdictionparty to same.
(dj) The Escrow Agent shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which under this Escrow Agreement so long as it may shall have acted in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or and without gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(ek) The Escrow Agent shall return never be required to use or advance its own funds or otherwise incur personal financial liability in the Corporation performance of any sums delivered to of its duties or the exercise of any of its rights and powers hereunder.
(l) The Escrow Agent pursuant shall have the right to this Escrow Agreement for perform any of its duties hereunder through agents, attorneys, custodians or nominees selected in good faith.
(m) Any banking association or corporation into which the Escrow Agent has not received release instructions pursuant to Section 4 hereofmay be merged, and as to converted or with which four years have passed since delivery.
(f) The the Escrow Agent may consult withbe consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any banking association or corporation to which all or substantially all of the corporate trust business of the Escrow Agent shall be transferred, shall succeed to all the Escrow Agent’s rights, obligations and obtain advice from, legal counsel (which may not be counsel to immunities hereunder without the Corporation) in the event execution or filing of any dispute paper or questions as to any further act on the construction part of any of the provisions hereof or its duties hereunderparties hereto, and it shall incur no liability in acting in good faith in accordance with anything herein to the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationcontrary notwithstanding.
(gn) Reference This Escrow Agreement expressly sets forth all the duties of the Escrow Agent, which shall be deemed purely ministerial in nature with respect to any and all matters pertinent hereto. The Escrow Agent shall under no circumstance be deemed a fiduciary for any of the parties to this Escrow Agreement. No implied duties or obligations shall be read into this Escrow Agreement to against the Registration Statement is for identification purposes onlyEscrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, and its terms and conditions are not thereby incorporated hereinDIRECTLY OR INDIRECTLY, FOR ANY (i) DAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES WHICH RESULT FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (ii) SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Appears in 2 contracts
Samples: Escrow Agreement (Abraxis BioScience, Inc.), Escrow Agreement (American Pharmaceutical Partners Inc /De/)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its ------------------------- duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 2 contracts
Samples: Escrow Agreement (Intervest Corporation of New York), Escrow Agreement (Intervest Corporation of New York)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Funds held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Escrow Agreement.
(b) The duties Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except for its own gross negligence or willful misconduct, and except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Interested Parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial Funds held by it hereunder in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrowgood faith, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Fund in accordance with Section 4 hereofFunds, or any loss of interest incident to any such delays. The foregoing indemnification and agreement to hold harmless shall survive the termination of this Escrow Agreement.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund entitled to rely upon any order, judgment, certification, demand, notice, instrument or other than to faithfully follow the instructions herein contained or writing delivered to it hereunder reasonably believed by the Escrow Agent in accordance with this Escrow Agreementto be authentic, correct and properly and validly served without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may rely and act in reliance upon any written notice, instruction, direction, request, waiver, consent, receipt instrument or other paper or document which signature reasonably believed by it in good faith believes to be genuine and what it purports may assume that the person purporting to be and give notice or advice or make any statement or execute any document in connection with the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is provisions hereof has been duly authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdictiondo so.
(d) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any error of judgment or for any act done or step action taken or omitted by itit in accordance with such advice, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold except that the Escrow Agent harmless shall be liable for any actions or omissions which result from the Escrow Agent's gross negligence or willful misconduct. Each Interested Party and against any the Major Shareholder acknowledges and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon agrees that the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(ei) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of responsible for any of the provisions hereof agreements referred to or its duties hereunderdescribed herein (including without limitation the Indemnification Agreement) or for determining or compelling compliance therewith, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.not
Appears in 2 contracts
Samples: Escrow Agreement (Softworks Inc), Escrow Agreement (Eagle Merger Corp)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its -------------------------- duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 2 contracts
Samples: Escrow Agreement (Intervest Mortgage Corp), Escrow Agreement (Intervest Mortgage Corp)
Duties of Escrow Agent. Acceptance (a) Escrow Agent shall not be under any duty to give the Escrow Fund held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Agreement.
(b) Escrow Agent shall not be liable for actions or omissions hereunder, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against Escrow Agent. Buyer and Seller shall jointly and severally indemnify and hold harmless Escrow Agent (and any successor Escrow Agent) and its affiliates and their respective assigns, directors, officers, managers, attorneys, accountants, experts agents and employees (the “indemnities”) from and against any and all losses, liabilities, claims, actions, damages, penalties, judgments, settlements, actions, suits, proceedings, litigation, investigations, cost and expenses, including reasonable attorneys’ fees and disbursements, and experts and their staffs and all expense of document location, duplication and shipment (collectively “Losses”) arising out of and in connection with (a) the Escrow Agent's execution and performance of this Agreement, tax reporting or withholding, the enforcement of any rights or remedies under or in connection with this Agreement, or as may arise by reason of any act, omission or error of the indemnitee, except in the case of any indemnitee to the extent that such Losses are finally adjudicated by a court of competent jurisdiction to have been primarily caused by the gross negligence or willful misconduct of such indemnitee, or (b) its following any instructions or other directions, whether joint or singular, from the Buyer and Seller, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof. Without limiting the foregoing, Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Fund or any loss of interest incident to any such delays. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, indirect or consequential loss or damage of its duties under any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Buyer and Seller hereto acknowledge that the foregoing indemnities shall survive the resignation, replacement or removal of the Escrow Agent or the termination of this Agreement. The Buyer and Seller hereby grant the Escrow Agent a lien on, right of set-off against and security interest in, the Escrow Fund for the payment of any claim for indemnification, expenses and amounts due hereunder. The obligations contained in this Section 5(b) shall survive the termination of this Agreement is subject to and the following terms and conditionsresignation, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities replacement or removal of the Escrow Agent.
(ac) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representatives of Buyer and Seller have full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent. The duties Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and responsibilities conditions of any other agreement, instrument or document between the Buyer and Seller, in connection herewith, if any, including without limitation the Purchase Agreement, nor shall the Escrow Agent be required to determine if any person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. In the event of any conflict between the terms and provisions of this Agreement, those of the Purchase Agreement, any schedule or exhibit attached to the Agreement, or any other agreement among the Buyer and Seller, the terms and conditions of this Agreement shall control.
(d) Escrow Agent may act pursuant to the advice of its counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the Escrow Fund deposited hereunder, but is serving as escrow holder only and has only possession thereof. Any payments of income from the Escrow Fund shall be limited subject to those expressly set forth withholding regulations then in force with respect to United States taxes. Buyer and Seller will provide Escrow Agent with appropriate Internal Revenue Service Forms W-8 and W-9 for tax identification number certification, or nonresident alien certifications. This Section 5(e) and Section 5(b) shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agreement and Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or collectability of any security or other document or instrument held by or delivered to it.
(g) Escrow Agent shall not be subject to, nor obligated called upon to recognize, advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other agreements between the Corporation, Underwriter and any Subscriberproperty deposited hereunder.
(bh) The duties of Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent are only such as are herein specifically provided jointly designated in writing by Buyer and such duties are purely ministerial Seller, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in natureconnection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to Buyer and Seller. If, at that time, Escrow Agent has not received a designation of a successor Escrow Agent's primary duty , Escrow Agent’s sole responsibility after that time shall be to keep custody of retain and safeguard the Escrow Fund during until receipt of (x) a designation of successor Escrow Agent or Joint Written Instructions, or (y) a final, non-appealable order of a court of competent jurisdiction. Any entity into which the period 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 may be transferred, shall be the Escrow Agent under this Agreement without further act.
(i) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final, non-appealable order of a court of competent jurisdiction directing delivery of the escrowEscrow Fund, to invest monies held or (ii) Joint Written Instructions directing delivery of the Escrow Fund, in which event Escrow Agent shall disburse the Escrow Fund in accordance with Section 2 hereof such order or Joint Written Instructions. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall act on such court order and legal opinion without further question. The Buyer and Seller agree to pursue any redress or recourse in connection with any dispute without making the Escrow Agent a party to the same.
(j) Buyer and Seller shall jointly and severally pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of Two Thousand Five Hundred Dollars ($2,500) annually, as shown Schedule 3 hereto, and agree to reimburse Escrow Agent for all reasonable and documented expenses, disbursements and advances incurred or made by Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). Any such compensation and reimbursement to which Escrow Agent is entitled shall be borne 50% by Buyer and 50% by Seller. All invoices for any such compensation or reimbursement shall be sent to Buyer and to make disbursements from Seller. The Buyer and Seller hereby grant the Escrow Agent a lien on, right of set-off against and security interest in, the Escrow Fund for the payment of any claim for compensation, expenses and amounts due hereunder. The obligations contained in accordance with this Section 4 hereof5(j) shall survive the termination of this Agreement and the resignation, replacement or removal of the Escrow Agent.
(ck) The No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent’s name or the rights, powers or duties of Escrow Agent shall be under no obligations in respect issued by or on behalf of the Escrow Fund other than to faithfully follow the instructions herein contained Buyer or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Seller unless Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the first have given its specific written consent thereto.
(l) The other parties hereto authorize Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it reasonably deems appropriate, including, without limitation, the Depository Trust Company and the Federal Reserve Book Entry System.
(m) In the event funds transfer instructions it receives are ambiguousgiven (other than in writing at the time of execution of this Agreement), uncertain whether in writing, by telecopier or in conflict with any previous instructions or this Escrow Agreementotherwise, then the Escrow Agent is authorized to hold seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule 2 hereto, and preserve intact the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. Each funds transfer instruction shall be executed by an authorized signatory, a list of such authorized signatories is set forth on Schedule 2. The undersigned representatives of Buyer and Seller are each authorized to certify that the signatories for Buyer and Seller, respectively, on Schedule 2 are authorized signatories. The individuals authorized to give or confirm funds transfer instructions may be changed only in a writing actually received and acknowledged by the Escrow Agent. The Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Buyer or Seller to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. The Escrow Agent may apply any of the Escrow Fund pending the settlement of for any payment order it executes using any such controversy by final adjudication identifying number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a court bank other than the beneficiary’s bank or courts an intermediary bank designated. The parties to this Agreement acknowledge that these security procedures are commercially reasonable. Buyer and Seller agree that repetitive or standing settlement instructions will be effective as the funds transfer instructions of proper jurisdictionBuyer and Seller, whether or not authorized, if such settlement instructions are verified pursuant to the security procedure provided herein or such other security procedure that the Escrow Agent, Buyer and Seller may agree to.
(dn) The Escrow Agent shall not be liable for any error Section 326 of judgment or for any act done or step taken or omitted the Uniting and Strengthening America by it, in good faith, or for any mistake Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold 2001 (“USA PATRIOT Act”) requires the Escrow Agent harmless from to implement reasonable procedures to verify the identity of any person that opens a new account with it. Accordingly, the Buyer and against any Seller acknowledge that Section 326 of the USA PATRIOT Act and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, the Escrow Agent’s identity verification procedures require the Escrow Agent to obtain information which may be imposed upon used to confirm the Parties identity including without limitation name, address and organizational documents (“identifying information”). The Buyer and Seller agree to provide the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered and consent to the Escrow Agent pursuant to this Escrow Agreement for which obtaining from third parties any such identifying information required as a condition of opening an account with or using any service provided by the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryAgent.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 2 contracts
Samples: Escrow Agreement (Hybrook Resources Corp.), Escrow Agreement (Hybrook Resources Corp.)
Duties of Escrow Agent. Acceptance by The parties to this Agreement agree as ---------------------- follows:
a. The Escrow Agent is not and shall not be deemed to be an agent with respect to any obligation or performance required of the Escrow Agent under this Agreement and is merely acting as a depository and in a ministerial capacity hereunder with the limited duties herein prescribed. The parties acknowledge that the Escrow Agent, in its capacity as Escrow Agent, is acting solely as a stakeholder at their request and for their convenience and that the Escrow Agent shall not be liable to either Buyer or Seller for any act or omission on its part unless taken or suffered in bad faith or in willful disregard of its duties under this Escrow Agreement is subject to or involving gross negligence on the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities part of the Escrow Agent.
b. The Escrow Agent does not have and shall not be deemed to have any responsibility in respect of any instructions, certificate, or notice delivered to it other than to faithfully carry out the obligations undertaken in this Escrow Agreement and to follow the directions in such instructions or notice in accordance with the terms hereof.
c. The Escrow Agent may conclusively rely on and act in accordance with any certificate, instruction, notice, letter, telegram, cablegram, or other written instrument reasonably believed by it to be genuine and to have been signed by the proper party or parties.
d. If any legal proceeding is instituted by or against the Escrow Agent with respect to the Escrowed Documents, the Escrowed Funds or any matter governed by or that is the subject of this Agreement, the Escrow Agent agrees promptly to give notice of such proceeding to all of the parties to this Escrow Agreement.
e. The Escrow Agent may resign as such hereunder by giving written notice of such resignation to the parties to this Escrow Agreement. Upon receipt of such notice, the parties hereto shall furnish to the Escrow Agent written instructions for the release of the Escrowed Documents and the Escrowed Funds (aor such portion thereof as may then be in escrow) to a substitute Escrow Agent which (whether designated by written instructions from the parties hereto jointly or, in the absence thereof, by instructions from a court of competent jurisdiction to the Escrow Agent) shall be a law firm doing business in the State of Georgia, an attorney licensed to practice in the State of Georgia, or a title company, bank, or trust company organized and doing business under the laws of the United States or any state thereof. Such substitute Escrow Agent shall thereafter hold the Escrowed Documents and the Escrowed Funds received by it pursuant to the terms of this Escrow Agreement and otherwise act hereunder as if it were the Escrow Agent originally named herein. The Escrow Agent's duties and responsibilities hereunder shall terminate upon the release of all of the Escrowed Documents and the Escrowed Funds then held in escrow according to such written instruction or upon such delivery as herein provided. This Escrow Agreement shall not otherwise be assignable by the Escrow Agent without the prior written consent of each of the parties hereto.
f. In the event of any dispute between the parties hereto, the Escrow Agent shall have the right, at any time, to deposit the Escrowed Funds with the clerk of any state or federal court of appropriate jurisdiction in Georgia and shall give written notice of such deposit to the Seller and the Buyer. Upon such deposit, the Escrow Agent shall be limited to those expressly relieved and discharged of all further obligations and responsibilities hereunder.
g. The Escrow Agent hereby acknowledges receipt of a copy of the Asset Purchase Agreement, but, except for reference thereto for certain terms and conditions not set forth in this Escrow Agreement and herein, the Escrow Agent shall is not be subject to, nor obligated to recognize, charged with any duty or obligation arising under any such documents or any other agreements between the Corporation, Underwriter and or among any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided parties hereto, and such duties are purely ministerial in nature. The the Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrowresponsibilities, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the as Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy shall be governed solely by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) h. The Escrow Agent or any member of his firm shall return be permitted to act as counsel for the Corporation Seller in any sums delivered dispute as to disbursement of the Escrowed Funds or any other dispute between the parties whether or not the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) is in the event of any dispute or questions as to the construction of any possession of the provisions hereof or its duties hereunder, Escrowed Funds and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationcontinues to act as Escrow Agent.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Pretzel Time Inc), Asset Purchase Agreement (Fields MRS Original Cookies Inc)
Duties of Escrow Agent. Acceptance (a) The Escrow Agent shall be entitled to rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without being required to investigate the validity, accuracy or content thereof nor shall the Escrow Agent be responsible for the validity or sufficiency of this Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditionsbased on such advice, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated liable to recognize, anyone. The Escrow Agent shall not be required to take any other agreements between action hereunder involving any expense unless the Corporation, Underwriter and any Subscriberpayment of such expense is made or provided for in a manner reasonably satisfactory to it.
(b) The duties In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Escrow Account, the Escrow Agent will have the absolute right, at the Escrow Agent’s election, to do either or both of the following: (i) resign as Escrow Agent so a successor can be appointed pursuant to clause (e) of this Section 7, or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and Parent on the one hand and the Stockholder on the other hand will pay the Escrow Agent all costs, expenses and reasonable attorneys’ fees expended or incurred by the Escrow Agent pursuant to the exercise of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with ’s rights under this Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof7(b).
(c) The Escrow Agent Agent, its corporate parent, its subsidiary corporations or any of its related companies, its employees, agents, officers, and directors, shall be under no obligations indemnified and held harmless by Parent, from and against any and all liability, including all expenses reasonably incurred in respect its defense, to which the Escrow Agent, its corporate parent, its subsidiary corporations or any of its related companies, its employees, agents, officers, and directors, shall be subject by reason of any action taken or omitted or any investment or disbursement of any part of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to Account made by the Escrow Agent in accordance with pursuant to this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion except as a result of the Escrow Agent, ’s own gross negligence or willful misconduct. This right of indemnification shall survive the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or termination of this Escrow Agreement, then and the removal or resignation of the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdictionAgent.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, have no interest in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from Account, but is serving as escrow holder only and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementhaving only possession thereof.
(e) The Escrow Agent may resign as Escrow Agent at any time and for any reason whatsoever. In the event the Escrow Agent desires to resign as Escrow Agent under this Agreement, the Escrow Agent shall return deliver a notice to Parent and the Corporation Stockholder stating the date upon which such resignation shall be effective; provided however, that any sums delivered such resignation shall not be effective until at least the 15th business day after Parent and the Stockholder receive such notice. Upon the receipt of any such notice from the Escrow Agent, Parent may appoint a successor escrow agent without the consent of the Stockholder so long as such successor is a bank or trust company with assets of at least $500 million and may appoint any other successor escrow agent with the consent of the Stockholder, which consent shall not be unreasonably withheld. In the case of the appointment of any successor escrow agent requiring the consent of the Stockholder as set forth in the preceding sentence, Parent and the Stockholder shall deliver a written notice to the Escrow Agent pursuant to this designating the successor escrow agent. Upon the effectiveness of the resignation of the Escrow Agreement for which Agent, the Escrow Agent shall deliver the Escrow Account to any successor escrow agent properly designated hereunder, whereupon the Escrow Agent shall be discharged from any and all further obligations arising hereunder. The Escrow Agent shall be paid any outstanding fees and expenses prior to transferring assets to a successor escrow agent. If upon the effective date of resignation of the Escrow Agent a successor escrow agent has not received release instructions pursuant been duly designated, the Escrow Agent’s sole responsibility after that time shall be to Section 4 hereof, retain and as to which four years have passed since deliverysafeguard the Escrow Account until receipt of a designation of successor escrow agent or a final nonappealable order of a court of competent jurisdiction.
(f) The In no event shall the Escrow Agent may consult withbe liable to any party for any special, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event indirect or consequential loss or damage of any dispute or questions as to kind, even if the construction of any Escrow Agent has been previously advised of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions possibility of such counsel. The fees for consultation with such counsel shall be paid by the Corporationloss or damage.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 2 contracts
Samples: Escrow Agreement (Century Park Pictures Corp), Escrow Agreement (Century Park Pictures Corp)
Duties of Escrow Agent. Acceptance by the (a) Escrow Agent of its duties shall hold the Shares and any related assignment document separate from certificate, and shall interpret and act under this Escrow Agreement is Agreement, subject to the following terms rights and conditions, which all remedies of the parties to the Pledge Agreement. If any provision of this Escrow Agreement agree shall govern and control conflicts with respect the Pledge Agreement, the Pledge Agreement controls; provided that the two agreements should be read to coordinate with each other to the rights, duties, liabilities and immunities of the Escrow Agentgreatest possible extent.
(ab) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject toliable, nor obligated to recognizeexcept for its own bad faith, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in naturegross negligence or willful misconduct. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability Except with respect to the formclaims based upon such bad faith, execution gross negligence or validity thereof. If, in the opinion of the willful misconduct that are successfully asserted against Escrow Agent, the instructions it receives are ambiguousPledgor, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold Seller and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent Buyer shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent arising out of and in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(ec) The Escrow Agent shall return be entitled to rely upon any arbitration award, order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the Corporation any sums contrary is delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryAgent.
(fd) The Escrow Agent may consult with, act pursuant to the written advice of counsel with respect to any matter relating to this Agreement and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrowed Shares received hereunder but is serving as escrow holder only and instructions having only possession thereof. This Section 3(e) and Section 3(b) of such counsel. The fees for consultation with such counsel this Agreement shall be paid survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by the Corporationor delivered to it.
(g) Reference Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrowed Shares to any successor Escrow Agent jointly designated by the Parties in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agreement Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is thirty (30) days after the date of delivery of its written notice of resignation to the Registration Statement Parties. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrowed Shares until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the Parties or a final non-appealable order of a court of competent jurisdiction.
(h) In the event of any disagreement between the Parties resulting in adverse claims or demands being made in connection with the Escrowed Shares, or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrowed Shares until Escrow Agent shall have received (i) a final nonappealable arbitration award or order of a court of competent jurisdiction directing delivery of the Escrowed Shares or (ii) a written agreement executed by all other parties hereto directing delivery of the Escrowed Shares, in which event Escrow Agent shall disburse the Escrowed Shares in accordance with such order or agreement. Any arbitration award or court order shall be accompanied by a legal opinion by counsel for identification purposes onlythe presenting party satisfactory to Escrow Agent to the effect that such award or order is final and non-appealable. Escrow Agent shall act on such arbitration award or court order and legal opinion without further question.
(i) Pledgor or Buyer shall pay Escrow Agent compensation for the services to be rendered by Escrow Agent hereunder.
(j) No printed or other matter (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless Escrow Agent shall first have given its terms and conditions are not thereby incorporated hereinspecific written consent thereto.
Appears in 2 contracts
Samples: Escrow Agreement (Surge Global Energy, Inc.), Escrow Agreement (Surge Global Energy, Inc.)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The Escrow Agent’s rights, duties and responsibilities of the Escrow Agent shall be obligations are strictly limited to those expressly set forth in this Escrow Agreement, and Escrow Agent shall be under no implied obligation or subject to any implied liability hereunder. Escrow Agent shall not be required to take notice of any default or any other matter, nor shall Escrow Agent be bound or required to give notice of demand, or required to take any action whatsoever except as herein expressly provided. Escrow Agent shall not be liable for any loss or damage unless caused by its own gross negligence or willful misconduct.
(b) The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto other than the Escrow Agent or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person’s obligations under any such document. Except for this Escrow Agreement and instructions given to the Escrow Agent in accordance with the terms and conditions of this Escrow Agreement relating to the Escrow Amount under this Escrow Agreement, the Escrow Agent shall not be subject to, nor obligated to recognize, recognize any other agreements agreement between the Corporation, Underwriter any and any Subscriber.
(b) The duties all of the Escrow Agent are only such as are persons referred to herein, notwithstanding that references thereto may be made herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereofwhether or not it has knowledge thereof.
(c) The Escrow Agent may rely conclusively and shall be under no obligations protected in respect acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent to be genuine. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the Escrow Fund other than to faithfully follow the instructions herein contained or terms thereof, unless evidenced by a writing timely delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written noticesigned by the proper party or parties and, instruction, direction, request, waiver, consent, receipt if the duties or other paper or document which it in good faith believes to be genuine and what it purports to be and rights of the Escrow Agent are affected, unless it shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdictiongive its prior written consent thereto.
(d) The Escrow Agent shall not be liable responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any error document or property received, held or delivered by it hereunder, or of judgment any signature or for any act done or step taken or omitted by it, in good faithendorsement thereon, or for any mistake lack of fact or lawendorsement thereon, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation any description therein; nor shall indemnify and hold the Escrow Agent harmless from and against be responsible or liable to the other parties hereto or to anyone else in any and all claimsrespect on account of the identity, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property or this Escrow Agreement. The Escrow Agent shall have no responsibility with respect to the use or incurred application of any funds or other property paid or delivered by the Escrow Agent in connection with its acceptance of pursuant to the appointment as provisions hereof. The Escrow Agent hereunder or the performance shall not be liable to any party for any loss which may be incurred by reason of its duties any investment of any monies which it holds hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return have the right to assume in the absence of written notice to the Corporation any sums delivered to contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent does not exist or has not received release instructions pursuant occurred, without incurring liability to Section 4 hereofthe other parties hereto or to anyone else for any action taken or omitted, and as or any action suffered by it to which four years have passed since deliverybe taken or omitted, in reliance upon such assumption.
(f) To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent may pay such taxes from the Escrow Amount. The Escrow Agent may consult withwithhold from any payment of monies held by it hereunder such amount as the Escrow Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and obtain advice frommay use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and tor any penalties or interest in respect of taxes, legal counsel (which may not on such investment income or payments in the manner provided herein. The Escrow Agent shall be counsel responsible for reporting all interest or other income earned on the Escrow Amount to the Corporation) in the event of IRS and any dispute or questions as to the construction of any of the provisions hereof or its duties hereunderother taxing authority, and it shall incur no liability in acting in good faith in accordance file all IRS 1099s and similar information reporting statements required to be filed under applicable law. All other tax returns required to be prepared and filed with respect to interest or other income earned on, or otherwise related to, the written opinion Escrow Amount will be prepared and instructions of such counsel. The fees for consultation with such counsel shall be paid filed by the Corporationparty that is legally responsible for filing such tax returns under applicable law.
(g) Reference in this Escrow Agreement Any payments to a person or entity entitled to receipt of any of the Escrowed Amount pursuant to the Registration Statement is for identification purposes onlyterms hereof shall be made, and its terms and conditions are not thereby incorporated hereinat the sole discretion of the Escrow Agent, either (i) by check, or (ii) by wire transfer to such person or entity, pursuant to the wire instructions provided to the Escrow Agent.
Appears in 1 contract
Samples: Unit Purchase Agreement (Health Insurance Innovations, Inc.)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent under this Agreement shall be limited to those expressly set forth in this Escrow Agreement entirely administrative and the Escrow Agent shall not be subject to, nor obligated liable to recognize, any party hereto or to any other agreements Person as a result of any action or omission taken or made by it in performing its duties hereunder, if taken in good faith, except for gross negligence, willful misconduct or fraud. MCC and Stockholders’ Representative shall jointly and severally indemnify, defend and hold harmless the Escrow Agent from and against and reimburse the Escrow Agent for any and all liability, costs and expenses the Escrow Agent may suffer or incur by reason of its execution and performance of this Agreement except to the extent caused by or arising out of Escrow Agent’s gross negligence, willful misconduct or fraud or except for a failure to comply with its obligation to keep the Escrow Fund in its custody (subject, however, to the terms and conditions of this Agreement); it being understood that as between MCC and the CorporationStockholders’ Representative, Underwriter each shall be responsible for 50% of any indemnification payable to the Escrow Agent. The Escrow Agent shall have no duties except those which are expressly set forth herein, and, except as otherwise expressly set forth herein, it shall not be bound by any notice of a claim, or demand with respect thereto, or any waiver, modification, amendment, termination or rescission of this Agreement, unless in writing received by it and signed by the parties hereto and otherwise conforming to any Subscriberrequirements contained herein.
(b) The duties of If the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial shall find it necessary to consult with counsel of its own choosing in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard connection with this Agreement, the Escrow Fund during the period of the escrow, to invest monies held Agent shall not incur any liability for any action taken in the Escrow Fund good faith in accordance with Section 2 hereof and such advice except to make disbursements from the extent caused by or arising out of Escrow Agent’s gross negligence, willful misconduct or fraud or except for a failure to comply with its obligation to keep the Escrow Fund Funds in accordance with Section 4 hereofits custody (subject, however, to the terms and conditions of this Agreement). The foregoing indemnification shall survive termination of this Agreement.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold not a party to, and preserve intact is not bound by, any other agreements with the Escrow Fund pending parties hereto regarding the settlement subject matter of this Agreement. In the event that any of the terms and provisions of any such controversy by final adjudication other agreement (excluding any amendment to this Agreement) between any of a court the parties hereto, conflict or courts are inconsistent with any of proper jurisdictionthe provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all respects.
(d) The Escrow Agent shall not neither be liable for responsible for, nor chargeable with, knowledge of the terms and conditions of any error of judgment other agreement, instrument or for any act done or step taken or omitted by itdocument between the other parties hereto, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused including without limitation the Merger Agreement (except to the extent provisions thereof are expressly incorporated herein by its willful misconduct or gross negligencereference). The Corporation shall indemnify This Agreement sets forth all matters pertinent to the escrow contemplated hereunder, and hold no additional obligations of the Escrow Agent harmless shall be inferred from and against the terms of this Agreement or any and all claimsother agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, lossesDIRECTLY OR INDIRECTLY, damagesFOR ANY (i) DAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, liabilities and expensesOTHER THAN DAMAGES WHICH RESULT FROM THE ESCROW AGENT’S FAILURE TO ACT IN ACCORDANCE WITH THE STANDARDS SET FORTH IN THIS AGREEMENT, including reasonable attorneys' feesOR (ii) SPECIAL, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunderINCIDENTAL OR CONSEQUENTIAL DAMAGES, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow AgreementEVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(e) The Escrow Agent shall return have the right to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of perform any of the provisions hereof or its duties hereunderhereunder through agents, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationattorneys, custodians or nominees.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by The duties of the Escrow Agent of its duties under this Escrow Agreement is subject shall be entirely administrative and, except for a breach of its obligation to keep the Escrow Fund safely in its custody (subject, however, to the following terms and conditionsconditions of this Agreement), which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject toliable to any third party as a result of any action or omission taken or made by it in performing its duties hereunder, nor obligated if taken in good faith, except for gross negligence, willful misconduct or fraud. LSI, on one hand, and the Shareholders, on the other hand, shall severally (each being responsible for 50% of the indemnity amount claimed by the Escrow Agent) indemnify, defend and hold harmless the Escrow Agent from and against and reimburse the Escrow Agent for any and all liability, costs and expenses the Escrow Agent may suffer or incur by reason of its execution and performance of this Agreement except to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties extent caused by or arising out of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be ’s gross negligence, willful misconduct or fraud or except for a failure to comply with its obligation to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof its custody (subject, however, to the terms and to make disbursements from the conditions of this Escrow Fund in accordance with Section 4 hereof.
(c) Agreement). The Escrow Agent shall have no duties except those which are expressly set forth herein, and, except as otherwise expressly set forth herein, it shall not be under no obligations bound by any notice of a claim, or demand with respect thereto, or any waiver, modification, amendment, termination or rescission of this Escrow Agreement, unless in respect writing received by it and signed by the parties hereto and otherwise conforming to any requirements contained herein. If the Escrow Agent shall find it necessary to consult with counsel of its own choosing in connection with this Escrow Agreement, the Escrow Agent shall not incur any liability for any action taken in good faith in accordance with such advice except to the extent caused by or arising out of the Escrow Fund other than Agent’s gross negligence, willful misconduct or fraud or except for a failure to faithfully follow comply with its obligation to keep the instructions herein contained or delivered Escrow Funds in its custody (subject, however, to the Escrow Agent in accordance with terms and conditions of this Agreement). The foregoing indemnification shall survive termination of this Escrow Agreement. The Escrow Agent may rely is not a party to, and act upon is not bound by, any written noticeother agreements with the parties hereto regarding the subject matter hereof. In the event that any of the terms and provisions of any other agreement (excluding any amendment to this Escrow Agreement) between any of the parties hereto, instructionconflict or are inconsistent with any of the provisions of this Escrow Agreement, directionthe terms and provisions of this Escrow Agreement shall govern and control in all respects. The Escrow Agent shall neither be responsible for, requestnor chargeable with, waiverknowledge of the terms and conditions of any other agreement, consent, receipt or other paper instrument or document which it between the other parties hereto, in good faith believes connection herewith, including without limitation the Purchase Agreement. This Escrow Agreement sets forth all matters pertinent to be genuine the escrow contemplated hereunder, and what it purports to be and no additional obligations of the Escrow Agent shall be subject to no liability with respect to inferred from the form, execution or validity thereof. If, in the opinion terms of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow AgreementAgreement or any other agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
DIRECTLY OR INDIRECTLY, FOR ANY (di) DAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES WHICH RESULT FROM THE ESCROW AGENT’S FAILURE TO ACT IN ACCORDANCE WITH THE STANDARDS SET FORTH IN THIS ESCROW AGREEMENT, OR (ii) SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The Escrow Agent shall not be liable for have the right to perform any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunderhereunder through agents, unless the Escrow Agent is determined to have committed an intentional wrongful act attorneys, custodians or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for nominees. Any banking association or corporation into which the Escrow Agent has not received release instructions pursuant to Section 4 hereofmay be merged, and as to converted or with which four years have passed since delivery.
(f) The the Escrow Agent may consult withbe consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any banking association or corporation to which all or substantially all of the corporate trust business of the Escrow Agent shall be transferred, shall succeed to all the Escrow Agent’s rights, obligations and obtain advice from, legal counsel (which may not be counsel to immunities hereunder without the Corporation) in the event execution or filing of any dispute paper or questions as to any further act on the construction part of any of the provisions hereof or its duties hereunderparties hereto, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement anything herein to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated hereincontrary notwithstanding.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by In addition to the Duties set forth in ----------------------- Article VIII, the Duties of the Escrow Agent of its duties under this Escrow Agreement is subject to shall include the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.following:
(a) The duties Escrow Agent shall hold and responsibilities safeguard the Escrow Shares during the Escrow Period, shall treat such Stock Escrow Fund as a trust fund in accordance with the terms of this Stock Escrow Agreement and Article VIII and not as the property of Parent, and shall hold and dispose of the Escrow Agent shall be limited to those expressly set forth Shares only in this Escrow Agreement and accordance with the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriberterms hereof.
(b) The duties of Escrow Shares shall be voted by the Escrow Agent in accordance with the specific written instructions received by the Escrow Agent from the Shareholders who are only the beneficial owners of such shares as to how such shares are herein specifically provided and such duties are purely ministerial in natureto be voted. The Escrow Agent's primary duty shall be to keep custody Agent need not solicit voting instructions. In the absence of and safeguard such instructions, the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in obligation to vote such shares. The Escrow Agent need not forward proxy information, annual or other reports or other information received from Parent with respect to the Escrow Shares.
(c) Promptly following termination of the Escrow Period, the Escrow Agent shall requisition from Parent's stock transfer agent if necessary, and shall deliver or cause such transfer agent to deliver to the Shareholders, in accordance with their percentage interests set forth in Annex B hereto, their ------- portions of the Escrow Shares and other property in the Stock Escrow Fund in excess of the amount of such Escrow Shares or other than property set forth in an Outstanding Claim Certificate, and to faithfully follow pay expenses as provided in Section 11(b) hereof. As soon as all such claims have been resolved, the instructions herein contained Escrow Agent shall deliver or delivered cause Parent's stock transfer agent to deliver to the Shareholders, in accordance with their interests set forth in Annex B hereto, all of the Escrow Shares and other property remaining in the Stock Escrow Fund and not required to satisfy such claims and expenses.
(d) Pursuant to Section 8.4 of the Reorganization Agreement, for the purpose of compensating Parent for its Damages pursuant to this Agreement, the Parent Common Stock in the Stock Escrow Fund shall be valued at the Escrow Value. If the value to be distributed to Parent (or to any Shareholder upon a termination of the escrow) is not evenly divisible by the Escrow Value, the Escrow Agent shall round down the number of shares to be distributed to the next highest number of shares and shall distribute that number. In lieu of the fractional interest not distributed, Parent shall furnish to the Escrow Agent, and the Escrow Agent in turn will distribute to the Shareholders, in accordance with this their percentage interests set forth in Annex B hereto, cash equal to such ------- fractional interest multiplied by the Escrow AgreementValue. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document Parent shall be deemed to have purchased such fractional interests with respect to which it in good faith believes has furnished funds to be genuine the Escrow Agent. Accordingly, the Escrow Agent, upon receipt of such funds, shall deliver the corresponding number of shares to Parent. In all events, Parent shall so purchase only a whole number of shares. Any cash so received from Parent and what it purports to be and not so immediately distributed by the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred retained by the Escrow Agent in connection with its acceptance as part of the appointment as Stock Escrow Agent hereunder or the performance of its duties hereunderFund, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may but need not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationinvested.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Digital Island Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the The Escrow Agent.
(a) The 's duties and responsibilities of the Escrow Agent in connection herewith shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in natureherein. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or responsible for any act done or step taken performed or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may hereunder in good faith do or refrain from doing and in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance exercise of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) own best judgment. The Escrow Agent may consult withrely upon any written notice, demand, certificate or other document which it believes in good faith to be genuine and obtain advice from, executed or delivered by the person purporting to execute or deliver such document. The Escrow Agent may confer with legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as question with respect to the construction of any of the provisions hereof or its duties hereunder, hereunder and it shall incur no liability be fully protected in acting in good faith in accordance with the written opinion opinions and instructions of such counsel. The fees Escrow Agent is hereby authorized to comply with any court order, arbitration ruling or other legal process which stays, enjoins, directs or otherwise affects the transfer or release of the Escrow Fund or any party hereto. In no event shall the Escrow Agent be liable to any party hereto for consultation any special, indirect or consequential loss or damage of any kind whatsoever, even if the Escrow Agent has been advised of such loss or damage. In the event of any disagreement resulting from adverse claims or demands being made with respect to any portion of the Escrow Fund, the Escrow Agent may refuse to comply with any such counsel claims or demands, or refuse to take any other action hereunder, so long as such disagreement continues and the Escrow Agent shall not be paid liable to any person for its failure or refusal to act and may continue to refuse to act until the rights of the parties have been fully and finally adjudicated by a court of competent jurisdiction (or by an arbitrator or arbitrators) or until the CorporationEscrow Agent shall have received a written notice signed by all disagreeing parties instructing the Escrow Agent to act or refrain from acting as specified therein.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Sportsmans Guide Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and treat the Escrow Agent shall not be subject toDeposit, nor obligated to recognizeincluding without limitation, any other agreements between the CorporationEscrow Amount, Underwriter with such degree of care as it treats its own similar property. It is agreed that the duties and any Subscriber.
(b) The duties obligations of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in natureno other. The Escrow Agent's primary duty shall be to keep custody of duties are as a depository only, and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under incur no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained liability whatsoever, except for its willful misconduct or delivered to the Escrow Agent in accordance with this Escrow Agreementnegligence. The Escrow Agent may rely consult with counsel of its choice, and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken action taken, suffered or omitted to be taken by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions advice of such counselcounsel (subject to the exception set forth in the prior sentence). The fees for consultation Escrow Agent shall not be bound in any way by any of the terms of the Merger Agreement or any other agreement to which Parent, Acquisition, the Company, the Securityholder Representative or the Escrow Securityholders are parties, whether or not the Escrow Agent has knowledge thereof, and the Escrow Agent shall not in any way be required to determine whether or not the Merger Agreement or any other agreement has been complied with such counsel by Parent, Acquisition, the Company or the Escrow Securityholders or any other party thereto. In the event that the Escrow Agent shall be paid by uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands which, in its opinion, are in conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action other than to keep safely all property held in escrow until it shall be directed otherwise pursuant to a joint notice from Parent and the Securityholder Representative or pursuant to a Final Determination. This Agreement shall not create any fiduciary duty of the Escrow Agent to Parent, the Surviving Corporation.
, the Company, the Securityholder Representative or the Escrow Securityholders nor disqualify the Escrow Agent from representing any of such parties in any way (g) Reference other than as counsel in connection with this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.Agreement),
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Section 5.1 Escrow Agent shall not be subject to, nor obligated under any duty to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard give the Escrow Fund during the period held by it hereunder any greater degree of the escrow, care than it gives its own similar property and shall not be required to invest monies any funds held hereunder except as directed in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereofthis Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Section 5.2 Escrow Agent shall not be liable liable, except for any error of judgment its own negligence or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, except with respect to claims based upon such negligence or gross negligence. The Corporation willful misconduct that are successfully asserted against Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Fund, or any loss of interest incident to any such delays.
Section 5.3 Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, unless any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is determined an entity other than a natural person has full power and authority to have committed an intentional wrongful instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
Section 5.4 Escrow Agent may act or pursuant to have been grossly negligent the advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
Section 5.5 Escrow Agent does not have any interest in the written opinion Escrow Fund deposited hereunder but is serving as escrow holder only and instructions having only possession thereof. Any payments of such counselincome from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation tax identification number certification, or non-resident alien certifications. This Section 5.5 and Section 5.2 above shall survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
Section 5.6 Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
Section 5.7 Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
Section 5.8 Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
Section 5.9 In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Fund or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, in which event Escrow Agent shall disburse the Escrow Fund in accordance with such counsel order or agreement. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall act on such court order and legal opinion without further question.
Section 5.10 River and Citizens shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of $______ at the time of execution of this Agreement and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). Any such compensation and reimbursement to which Escrow Agent is entitled shall be borne by River and Citizens in equal shares. Any fees or expenses of Escrow Agent or its counsel that are not paid as provided for herein may be taken from any property held by Escrow Agent hereunder.
Section 5.11 No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the Corporationother parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
(g) Reference in this Section 5.12 The other parties hereto authorize Escrow Agreement Agent, for any securities held hereunder, to use the Registration Statement is for identification purposes onlyservices of any United States central securities depository it reasonably deems appropriate, including, without limitation, the Depositary Trust Company and its terms and conditions are not thereby incorporated hereinthe Federal Reserve Book Entry System.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties Escrow Agent’s hereunder are only those specifically provided herein and responsibilities of the are ministerial in nature and nondiscretionary. Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall will not be subject toliable for any mistake of fact or for any acts or failure to act of any kind taken in good faith and believed by it to be authorized or within the rights or powers conferred by this Agreement, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriberunless there be shown willful misconduct or gross negligence.
(b) The duties Escrow Agent will not be responsible for the sufficiency of the Escrow Funds deposited hereunder, nor for the accuracy or inaccuracy of any statement contained in any certification or other written document delivered to Escrow Agent are only hereunder. Escrow Agent will not be liable for the default of any party hereto because of such as are herein specifically provided party’s failure to perform, and such duties are purely ministerial will have no responsibility to seek performance by any party; nor will it be liable for the outlawing of any rights under any statutes of limitation in naturerespect to any documents or items deposited. The Escrow Agent's primary duty shall Agent will not be to keep custody liable for collection of and safeguard items until the Escrow Fund during the period proceeds of the escrow, to invest monies held same in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereofactual cash have been received.
(c) The Escrow Agent shall will not be under no obligations liable in any respect on account of the identity, authority or rights of persons executing or delivering, or purporting to execute or deliver, any certification or other written document or item, and may rely absolutely and be fully protected in acting upon any item, certification or other written document believed by it to be authentic in performing its duties hereunder. Escrow Fund other than to faithfully follow the instructions herein contained or delivered Agent may, as a condition to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act disbursement of money or property, require from the payee or recipient a receipt therefor, and, upon final payment or distribution, require a release from any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, arising out of its execution or validity thereof. If, in the opinion performance of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not will be liable for any error of judgment or for any act done or step taken or omitted indemnified and held harmless by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless Aquila from and against any and all claims, lossescosts, damages, liabilities and expenses, including reasonable attorneys' fees, expenses which may be imposed upon the Escrow Agent may incur or incurred by the Escrow Agent sustain in connection with its acceptance or arising out of the appointment this Agreement, including, but not limited to, any costs, damages, liabilities and third-party expenses that may be incurred as a result of claims or actions by third parties. The Escrow Agent hereunder or will be entitled to consult with and engage the performance services of legal counsel of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent choice with respect to its duties under any matter pertaining to this Escrow AgreementAgreement and will be entitled to reimbursement for the reasonable costs and expenses of such external legal counsel.
(e) The Escrow Agent shall return will be entitled to reasonable compensation and reimbursement for its services and out of pocket expenses. Except to the Corporation any sums delivered extent specifically provided for in Section 8, Escrow Agent does not have the right to reimburse itself out of the Escrow Agent pursuant Fund in its possession for costs, expenses, attorney’s fees and its compensation, and will have recourse only to this Escrow Agreement Aquila for which the payment of such compensation and expenses. Escrow Agent has not received release instructions pursuant retains the right to Section 4 hereof, resign upon giving sixty days’ written notice to both Aquila and as to which four years have passed since deliveryChubb.
(f) The In accepting the Escrow Agent may consult withFund and other funds, securities or documents delivered hereunder, it is agreed and obtain advice fromunderstood that, legal counsel (which may not be counsel to the Corporation) in the event of any dispute disagreement between the parties to this Agreement, or questions as to the construction of persons claiming under them, or any of them, Escrow Agent reserves the provisions hereof or right to hold the Escrow Fund and all other funds, securities, documents and property in its duties hereunderpossession, and it shall incur no liability all papers in acting connection with or concerning the escrow, until a mutual agreement has been reached between all of said parties, or until delivery is made to court in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid any interpleader action, or until as otherwise authorized by the Corporationfinal judgment or decree.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Escrow Agreement (Aquila Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its ---------------------- duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by (a) Escrow Agent shall not be under any duty to give the Escrow Fund held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) Escrow Agent of shall not be liable, except for its duties under this Escrow Agreement is subject to the following terms and conditionsown gross negligence or willful misconduct and, which all parties to this Escrow Agreement agree shall govern and control except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against Escrow Agent, the rightsothers hereto shall jointly and severally indemnify and hold harmless Escrow Agent (and any successor Escrow Agent) from and against any and all losses, dutiesliabilities, liabilities claims, actions, damages and immunities expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with this Agreement.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(ad) Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the Escrow Fund deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The duties parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or non-resident alien certifications. Section 4(e) and responsibilities Section 4(b) shall survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(g) Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be limited to those expressly set forth discharged of and from any and all further obligations arising in connection with this Escrow Agreement and the Agreement. The resignation of Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between will take effect on the Corporation, Underwriter and any Subscriber.
earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) The duties the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The has not received a designation of a successor Escrow Agent's primary duty , Escrow Agent’s sole responsibility after that time shall be to keep custody of retain and safeguard the Escrow Fund during until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the period other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(h) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction or arbitrator directing delivery of the escrowEscrow Fund or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, to invest monies held in which event Escrow Agent shall disburse the Escrow Fund in accordance with Section 2 hereof such order or agreement. Any court or arbitrator order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and to make disbursements from the non-appealable. Escrow Fund in accordance with Section 4 hereofAgent shall act on such court order and legal opinion without further question.
(ci) The Purchaser and the NTS Sellers shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of $____________ at the time of execution of this Agreement and $__________ annually thereafter and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). Any such compensation and reimbursement to which Escrow Agent is entitled shall be borne 50% by Purchaser, and 50% by the NTS Sellers with each NTS Seller responsible for its Pro-Rata Share of such 50% which may be deducted from each NTS Seller’s cash portion of its share of the Escrow Fund.
(j) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent’s name or the rights, powers, or duties of Escrow Agent shall be under no obligations in respect of issued by the Escrow Fund other than to faithfully follow the instructions herein contained parties hereto or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the on such parties’ behalf unless Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdictionfirst have given its specific written consent thereto.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Xfone Inc)
Duties of Escrow Agent. Acceptance The acceptance by the Escrow Agent of its duties under this Pledge And Escrow Agreement is subject to the following terms and conditions, which all parties to this Pledge And Escrow Agreement hereby agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereofprovided.
(cb) The Escrow Agent shall be under no obligations in obligation with respect of to the Escrow Fund escrowed Common Stock other than to faithfully follow the instructions contained herein contained or subsequently delivered to the Escrow Agent in accordance with this Pledge And Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document from the Secured Party which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(dc) The Escrow Agent shall not be liable for any error of judgment judgment, or for any act done or step taken or omitted by it, it in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by except its own gross negligence or willful misconduct or gross negligencemisconduct. The Corporation Secured Party and the Pledgors jointly and severally, shall defend, indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' attorney's fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been 58 grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chromatics Color Sciences International Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Shares held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable liable, except for any error of judgment its own gross negligence or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, except with respect to claims based upon such gross negligence or gross negligence. The Corporation willful misconduct that are successfully asserted against Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Shares, or any loss of interest incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent. If the Escrow Agent is determined obeys or complies with any court order, judgment or decree, it shall not be liable to have committed an intentional wrongful act any of the parties, their respective successors or assigns, or to have been grossly negligent any other person or entity because of such compliance, even if such court order, judgment or decree is substantially reversed, modified, annulled, set aside or vacated.
(d) Escrow Agent may act pursuant to the advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice. Escrow Agent shall never be required to calculate the written opinion value, or determine the number of Escrow Shares necessary to satisfy a Claim or to be distributed to the Majority Shareholders.
(e) Escrow Agent does not have any interest in the Escrow Shares deposited hereunder but is serving as escrow holder only and instructions having only possession thereof. Any payments of such counselincome from this Escrow Shares shall be subject to withholding regulations then in force with respect to United States taxes. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation with such counsel tax identification number certification, or non-resident alien certifications. This Section 4(e) and Section 4(b) shall be paid survive notwithstanding any termination of this Escrow Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by the Corporationor delivered to it.
(g) Reference Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Shares to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent may, at Escrow Agent's election, (i) retain and safeguard the Escrow Shares until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction or (ii) interplead the Escrow Shares with a court of competent jurisdiction in Tarrant County, Texas, and recover from the other parties hereto, jointly and severally, its attorneys' fees and costs in connection with such interpleader.
(i) If there is any disagreement or dispute in connection with the Escrow Shares or the subject matter hereof, or in the event of adverse or inconsistent claims or demands upon, or inconsistent instructions to, the Escrow Agent, or if the Escrow Agent in good faith is in doubt as to what action to take pursuant to the Escrow Agreement, the Escrow Agent may, at its election, refuse to comply with any such claims, demands or instructions, or refuse to take any other action pursuant to this Escrow Agreement until:
(i) the rights of all persons involved in the dispute have been fully and finally adjudicated by a court of competent jurisdiction or the Escrow Agent has resolved any such doubts to its good faith satisfaction; or
(ii) all disputes have been resolved between the parties involved, and the Escrow Agent has received written notice thereof satisfactory to it from all such persons. Without limiting the generality of the foregoing, the Escrow Agent may, at its election, interplead the Escrow Shares or any portion thereof with a court of competent jurisdiction in Tarrant County, Texas, or commence judicial proceedings for declaratory judgment, and the Escrow Agent shall be entitled to recover from the other parties to this Escrow Agreement, jointly and severally, its attorneys' fees and costs in connection with any such interpleader or declaratory judgment action.
(j) Buyer shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amounts set forth on EXHIBIT A attached hereto. Buyer agrees to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). Any fees or expenses of Escrow Agent or its counsel that are not paid as provided for herein may be taken from any property held by Escrow Agent hereunder.
(k) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
(l) The other parties hereto authorize Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it reasonably deems appropriate, including, without limitation, the Depositary Trust Company and the Federal Reserve Book Entry System.
(m) If the number of Escrow Shares to be disbursed at any time by Escrow Agent to any other party pursuant to the Registration Statement terms of this Escrow Agreement is less than the total amount of Escrow Shares held by Escrow Agent, Escrow Agent shall tender the certificates representing the Escrow Shares to North American Transfer, the transfer agent for identification purposes onlyBuyer, and its terms and conditions are not thereby incorporated hereinto reduce such certificates into smaller denominations sufficient to permit such partial disbursement.
Appears in 1 contract
Samples: Escrow Agreement (Humphrey Neall W)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent is acting solely as a stakeholder under the Section 9.2. Escrow Agent’s duties shall be limited to those expressly set forth determined solely by the express provisions hereof and are purely ministerial in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscribernature.
(b) The duties During the term of the this Agreement, Escrow Agent are only such as are herein specifically provided shall hold and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard deliver the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund Deposit in accordance with Section 2 hereof the terms and to make disbursements from provisions of this Agreement. Escrow Agent shall disburse the Escrow Fund Deposit in strict accordance with Section 4 hereofthe written instructions of the parties hereto.
(c) The If this Agreement is terminated by the mutual written agreement of Seller and Purchaser, or if Escrow Agent is unable at any time to determine to whom the Deposit should be delivered, or if a dispute develops between Seller and Purchaser concerning the proper disposition of the Deposit, then Escrow Agent shall deliver the Deposit in accordance with the joint written instructions of the Seller and Purchaser. If written instructions are not received by Escrow Agent within ten (10) days after Escrow Agent has served a written request for instructions upon both Seller and Purchaser, the Escrow Agent shall have the right to pay the Deposit into any court of competent jurisdiction and to interplead Seller and Purchaser. Upon the filing of the interpleader action, Escrow Agent shall be under no discharged from any further obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance connection with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The If costs or expenses are incurred by Escrow Agent because of litigation or a dispute between Seller and Purchaser, Seller and Purchaser shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the each pay Escrow Agent harmless from one-half of Escrow Agent’s reasonable costs and against any and all claims, losses, damages, liabilities expenses. Except for such costs and expenses, including reasonable attorneys' fees, which may no fee or charge shall be imposed upon the due or payable to Escrow Agent or incurred by the Escrow Agent in connection with for its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties services under this Escrow Agreement.
(e) The Escrow Agent shall return undertakes only to perform the Corporation duties and obligations imposed upon it under the terms of this Agreement and does not undertake to perform any sums delivered of the covenants, terms and provisions applicable to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, Seller and as to which four years have passed since deliveryPurchaser.
(f) The Purchaser and Seller acknowledge and agree that Escrow Agent has assumed no liability except for negligence or willful misconduct; that Escrow Agent shall not be responsible for the validity, correctness or genuineness of any document or notice referred to under this Agreement; and that Escrow Agent may consult with, seek advice from its own counsel and obtain advice from, legal counsel (which may not shall be counsel to the Corporation) fully protected in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and action taken by it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such its counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference The conditions to the Closing shall be the Escrow Agent’s receipt of funds and documents as described in this Section 9. Upon receipt of such funds and documents, Escrow Agreement Agent shall deliver the items as described in this Agreement.
(h) The funds required from Purchaser and all acts and documents required of Purchaser or Seller in order to close the escrow pursuant hereto shall be deposited with Escrow Agent on the business day prior to the Registration Statement is for identification purposes onlyClosing Date, shall be performed no later than 10:00 a.m. (Eastern Time) on the Closing Date, and its terms and conditions are not thereby incorporated hereinshall be available for immediate distribution at Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Capital Lease Funding Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this treat the ---------------------- Escrow Agreement and Funds with such degree of care as it treats it own similar property. It is agreed that the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided provided, and such duties are purely ministerial in naturethe Escrow Agent shall have no other duties, implied or otherwise. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrowduties are as a depository only, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to incur no responsibility or liability with respect to the formwhatsoever, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable except for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, with counsel of its choice and obtain advice from, legal counsel (which may shall not be counsel responsible or liable for any action taken, suffered or omitted to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and be taken by it shall incur no liability in acting in good faith in accordance with the written opinion and instructions advice of such counselcounsel (subject to the exception set forth above in the prior sentence). Except where the terms of this Agreement expressly refer thereto, the Escrow Agent shall not be bound in any way by any of the terms of the Purchase Agreement or any other agreement to which one or more of, Buyer or Sellers are parties, whether or not the Escrow Agent has knowledge thereof, and the Escrow Agent shall not in any way be required to determine whether or not the Purchase Agreement or any other agreement has been complied with by Buyer or Sellers or any other party thereto. In the event that the Escrow Agent shall be uncertain as to any of its duties or rights hereunder, it shall be entitled to refrain from taking action other than to keep safely all property held in escrow until it shall be directed otherwise pursuant to a joint written notice from and executed by Buyer and Sellers or a court order, and the Escrow Agent shall not be responsible or liable for any damages while waiting for such joint written notice or court order. This Agreement shall not create any fiduciary duty of the Escrow Agent to Buyer or Sellers or any other person or entity whatsoever. The fees for consultation with Escrow Agent shall provide monthly statements identifying transactions, transfers or holdings of the Escrow Funds and each such counsel statement shall be paid deemed to be correct and final upon receipt thereof by the Corporationparties hereto unless the Escrow Agent is notified in writing to the contrary within thirty (30) business days of the date of such statement.
(gb) Reference in this Escrow Agreement As security for the due and punctual performance of any and all obligations to the Registration Statement is for identification purposes onlyEscrow Agent hereunder, now or hereafter arising, Sellers and Buyer, individually and collectively, hereby pledge, assign and grant to the Escrow Agent a continuing security interest in, and its a lien on, the Escrow Funds and all distributions thereon or additions thereto (whether such additions are the result of deposits or the investment of the Escrow Funds). The security interest of the Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against Sellers, Buyer and all third parties in accordance with the terms and conditions of this Agreement. If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent hereunder are not thereby incorporated hereinpromptly paid when due, the Escrow Agent may reimburse itself therefore from the Escrow Funds and may sell, convey or otherwise dispose of any investment of the Escrow Funds for such purpose.
Appears in 1 contract
Duties of Escrow Agent. Acceptance (a) The Escrow Agent shall be entitled to rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without being required to investigate the validity, accuracy or content thereof. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditionsbased on such advice, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated liable to recognize, anyone. The Escrow Agent shall not be required to take any other agreements between action hereunder involving any expense unless the Corporation, Underwriter and any Subscriberpayment of such expense is made or provided for in a manner reasonably satisfactory to it.
(b) The duties In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Escrow Shares, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign as Escrow Agent so a successor can be appointed pursuant to clause (d) of this Section 6, or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and Parent will pay the Escrow Agent all costs, expenses and reasonable attorneys' fees expended or incurred by the Escrow Agent pursuant to the exercise of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall rights under this Section 6(b) (such costs, fees and expenses will be to keep custody treated as extraordinary fees and expenses for the purposes of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 5 hereof).
(c) The Escrow Agent shall be under no obligations indemnified, jointly and severally, and saved harmless by the Parent, from and against any and all liability, including all expenses reasonably incurred in respect of the Escrow Fund other than its defense, to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject by reason of any action taken or omitted or any investment or disbursement of any part of the Escrow Agent made by the Escrow Agent pursuant to no liability with respect to the formthis Escrow Agreement, execution or validity thereof. If, in the opinion except as a result of the Escrow Agent, 's own gross negligence or willful misconduct. The costs and expenses of enforcing this right of indemnification shall also be paid by the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or Parent. This right of indemnification shall survive the termination of this Escrow Agreement, then and the removal or resignation of the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdictionAgent.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, have no interest in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from Shares, but is serving as escrow holder only and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementhaving only possession thereof.
(e) The Escrow Agent may resign as Escrow Agent at any time and for any reason whatsoever. In the event the Escrow Agent desires to resign as Escrow Agent under this Agreement, the Escrow Agent shall return deliver a notice to Parent and the Corporation Company Shareholders' Representatives stating the date upon which such resignation shall be effective; provided however, that any sums delivered such resignation shall not be effective until at least the 30th day after Parent and the Company Shareholders' Representatives receive such notice. Upon the receipt of any such notice from the Escrow Agent, Parent may appoint a successor escrow agent without the consent of the Company Shareholders' Representatives so long as such successor is a bank or trust company with assets of at least $50 million or a bank or trust company with a parent company with assets of at least $50 million, and may appoint any other successor escrow agent with the consent of either of the Company Shareholders' Representatives, which consent shall not be unreasonably withheld. In the case of the appointment of any successor escrow agent requiring the consent of either of the Company Shareholders' Representatives as set forth in the preceding sentence, Parent and either of the Company Shareholders' Representatives shall deliver a written notice to the Escrow Agent pursuant to this designating the successor escrow agent. Upon the effectiveness of the resignation of the Escrow Agreement for which Agent, the Escrow Agent shall deliver the Escrow Shares to any successor escrow agent properly designated hereunder, whereupon the Escrow Agent shall be discharged from any and all further obligations arising hereunder. If upon the effective date of resignation of the Escrow Agent a successor escrow agent has not received release instructions pursuant been duly designated, the Escrow Agent's sole responsibility after that time shall be to Section 4 hereof, retain and as to which four years have passed since deliverysafeguard the Escrow Shares until receipt of a designation of successor escrow agent or a final nonappealable order of a court of competent jurisdiction.
(f) The In no event shall the Escrow Agent may consult withbe liable to any party for any special, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event indirect or consequential loss or damage of any dispute or questions as to kind, even if the construction of any Escrow Agent has been previously advised of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions possibility of such counsel. The fees for consultation with such counsel shall be paid by the Corporationloss or damage.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Qualcomm Inc/De)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Amounts held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties of the Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are only such as are herein specifically provided and such duties are purely ministerial in nature. The successfully asserted against Escrow Agent's primary duty , the other parties hereto shall be to keep custody of jointly and safeguard the severally indemnify and hold harmless Escrow Fund during the period of the escrowAgent (and any successor Escrow Agent) from and against any and all losses, to invest monies held in the Escrow Fund in accordance with Section 2 hereof liabilities, claims, actions, damages and to make disbursements from the Escrow Fund in accordance with Section 4 hereofexpenses, including reasonable attorney’s fees.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes pursuant to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability advice of counsel with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or matter relating to this Escrow Agreement, then the Escrow Agent is authorized to hold Agreement and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with such advice.
(d) Escrow Agent does not have any interest in the written opinion Escrow Amounts but is serving as escrow holder. Escrow Agent represents the Company in numerous matters which Investors acknowledge.
(e) Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any document or instrument held by or delivered to it.
(f) Escrow Agent may at any time resign as such by delivering the Escrow Amounts to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and instructions of such counselfrom any and all further obligations arising in connection with this Agreement. The fees for consultation with such counsel resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent’s sole responsibility after that time shall be paid to retain and safeguard the Escrow Amounts until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the Corporationother parties hereto or a final non-appealable order of a court of competent jurisdiction.
(g) Reference In the event of any disagreement between any of the parties hereto resulting in this adverse claims or demands being made in connection with the Escrow Agreement Amounts or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Amounts until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Amounts or (ii) a written agreement executed by the affected parties hereto directing delivery of the Escrow Amounts, in which event Escrow Agent shall disburse the Escrow Amounts in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the Registration Statement effect that the order is final and non-appealable. Escrow Agent shall act on such court order and the legal opinion without further question.
(h) The Investors and the Company jointly and severally agree to reimburse the Escrow Agent for identification purposes only, reasonable outside counsel fees incurred in connection with the performance of its duties and its terms and conditions are not thereby incorporated hereinresponsibilities hereunder.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this give the Escrow Agreement and Fund held by it hereunder the same degree of care that it gives other similar escrow property. The Escrow Agent shall not be subject to, nor obligated required to recognize, give the Escrow Fund held by it hereunder any greater degree of care than it gives other agreements between the Corporation, Underwriter similar escrow property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties Escrow Agent shall not be liable, except for its own fraud, gross negligence or willful misconduct and, except with respect to claims based upon such fraud, gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Stockholder Representative (on behalf of the Holders in accordance with their respective Allocation Percentages) and Purchaser shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with this Agreement (“Losses”) except for such Losses that have been finally adjudicated to have resulted from the Escrow Agent’s fraud, gross negligence or willful misconduct. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Agent are only Fund, or any loss of interest incident to any such as are herein specifically provided and such duties are purely ministerial in naturedelays. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period Stockholder Representative (on behalf of the escrow, to invest monies held in the Escrow Fund Holders in accordance with their respective Allocation Percentages), on the one hand, and Purchaser, on the other hand, agree to reimburse each other for one-half of any payments made by them pursuant to this Section 2 hereof and 6(b) with respect to make disbursements from liabilities for which the parties hereto are jointly liable pursuant to this Section 6(b). In the event that the Stockholder Representative becomes liable to the Escrow Fund Agent or Purchaser for any such losses, liabilities, claims, actions, damages and expenses, or the Stockholder Representative otherwise incurs losses, costs or expenses in accordance with Section 4 hereofcarrying out its duties hereunder, including reasonable attorneys’ fees and disbursements, then the Stockholder Representative may direct the Escrow Agent to pay to the Stockholder Representative any amounts otherwise payable hereunder to the Holders to the Stockholder Representative as reimbursement for such payments and liabilities until the Stockholder Representative has been reimbursed in full for all such payments and liabilities.
(c) The Escrow Agent shall be under no obligations in respect entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreementservice thereof. The Escrow Agent may rely and act in reliance upon any written notice, instruction, direction, request, waiver, consent, receipt instrument or other paper or document which signature believed by it in good faith believes to be genuine and what it purports may assume that the person purporting to be give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct the Escrow Agent shall be subject to no liability with respect on behalf of that party unless written notice to the form, execution or validity thereof. If, in the opinion of contrary is delivered to the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection accordance with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementsuch advice.
(e) The Escrow Agent shall return to the Corporation any sums delivered to Except for Section 6(j) below, the Escrow Agent pursuant to does not have any interest in the Escrow Fund deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from this Escrow Agreement for which Fund shall be subject to withholding regulations then in force with respect to United States taxes. Each party hereto will provide the Escrow Agent has not received release instructions pursuant to with appropriate W-9 Internal Revenue Service Forms for tax identification number certification or non-resident alien certifications for such party (and in the case of the Stockholder Representative, for each Holder). This Section 4 hereof, 6(e) and as to which four years have passed since deliverySection 6(b) above shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions makes no representation as to the construction validity, value, genuineness or the collectibility of any of the provisions hereof security or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid other document or instrument held by the Corporationor delivered to it.
(g) Reference in this The Escrow Agreement Agent shall not be called upon to advise any party as to the Registration Statement wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent’s sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a Joint Instruction or Final Determination.
(i) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that the Escrow Agent is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Fund until the Escrow Agent shall have received a Joint Instruction or Final Determination directing delivery of the Escrow Fund, in which event the Escrow Agent shall disburse the Escrow Fund in accordance with such Joint Instruction or Final Determination. The Escrow Agent shall act on such Joint Instruction or Final Determination without further question.
(j) Purchaser shall pay the Escrow Agent compensation as listed on Schedule II hereto for identification purposes onlythe services to be rendered by the Escrow Agent hereunder. The Escrow Agent shall be entitled to deduct fees from the Escrow Fund. Purchaser and the Stockholder Representative (on behalf of the Holders in accordance with their respective Allocation Percentages) agree to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in the performance of its terms duties hereunder (including reasonable fees, expenses and conditions are disbursements of its counsel). Any such compensation and reimbursement to which the Escrow Agent is entitled shall be borne 50% by Purchaser and 50% by the Stockholder Representative (on behalf of the Holders in accordance with their respective Allocation Percentages). The Escrow Agent shall be entitled and is hereby granted the right to set off and deduct any unpaid fees, non-reimbursed expenses and unsatisfied indemnification rights from amounts on deposit in the Escrow Fund. In the event that the Stockholder Representative becomes liable to the Escrow Agent for any such compensation and reimbursement under this Agreement, then the Stockholder Representative may direct the Escrow Agent to pay to the Stockholder Representative any amounts payable hereunder to the Holders in accordance with their respective Allocation Percentages until the Stockholder Representative has been reimbursed in full for all such compensation and reimbursement.
(k) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it reasonably deems appropriate, including, without limitation, the Depositary Trust Company and the Federal Reserve Book Entry System.
(l) Purchaser and the Stockholder Representative (on behalf of the Holders in accordance with their respective Allocation Percentages) shall reimburse and pay the Escrow Agent for all costs, attorneys’ fees, charges, disbursements and expenses arising in connection with any litigation on account of this Agreement (unless such litigation shall have been finally adjudicated to have resulted from willful misconduct or gross negligence of the Escrow Agent) and, to the extent not thereby incorporated hereinpaid or reimbursed by Purchaser and the Stockholder Representative (on behalf of the Holders in accordance with their respective Allocation Percentages) on demand, the Escrow Agent shall be entitled to reimburse itself therefor out of the property deposited hereunder. No such payment from the Escrow Fund shall diminish or relieve Purchaser and/or the Stockholder Representative (on behalf of the Holders in accordance with their respective Allocation Percentages) from their respective obligation to pay 50% of all such costs, attorneys’ fees, charges, disbursements and expenses incurred by the Escrow Agent. In the event that the Stockholder Representative becomes liable to the Escrow Agent for any such costs, attorneys’ fees, charges, disbursements and expenses under this Agreement, then the Stockholder Representative may direct the Escrow Agent to pay to the Stockholder Representative any amounts otherwise payable hereunder to the Holders to the Stockholder Representative until the Stockholder Representative has been reimbursed in full for all such costs, attorneys’ fees, charges, disbursements and expenses.
(m) Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or in part, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall be and become the successor Escrow Agent hereunder and vested with all of the title to the whole property or trust estate and all of the trusts, powers, immunities, privileges, protections and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder.
(b) The duties of Escrow Agent and its directors, officers and employees shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent are only such as are herein specifically provided (and such duties are purely ministerial in nature. The any successor the Escrow Agent's primary duty shall be to keep custody ) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys fees and disbursements, arising out of and safeguard in connection with this Agreement. In no event shall the Escrow Fund during the period of the escrowAgent be liable for indirect, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereofpunitive, special or consequential damages.
(c) The Escrow Agent shall be under no obligations in respect entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreementservice thereof. The Escrow Agent may rely and act in reliance upon any written notice, instruction, direction, request, waiver, consent, receipt instrument or other paper or document which signature believed by it in good faith believes to be genuine and what it purports may assume that the person purporting to be give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct the Escrow Agent shall be subject to no liability with respect on behalf of that party unless written notice to the form, execution or validity thereof. If, in the opinion of contrary is delivered to the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent may act pursuant to the advice of counsel, including in-house counsel, with respect to any matter relating to this Agreement and shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do in accordance with such advice.
(e) The Escrow Agent does not have any interest in the Escrow Fund deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent at the signing of this Agreement with appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or refrain non-resident alien certifications. Section 4(b) and this Section 4(e) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent. The parties hereto understand that, in the event their tax identification numbers are not certified to the Escrow Agent, the Internal Revenue Code, as amended from doing time to time, may require withholding of a portion of any interest or other income earned on the investment of the Escrow Fund.
(f) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(g) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) The Escrow Agent (and any successor the Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor the Escrow Agent jointly designated by the other parties hereto in writing, or to the arbitration panel described in Section 17.8 of the Merger Agreement, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection herewith, unless caused by its willful misconduct or gross negligencewith this Agreement. The Corporation resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor or (ii) the day which is thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor the Escrow Agent, the Escrow Agent may apply to a court of competent jurisdiction for appointment of a successor escrow agent and the Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of a successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(i) In the event of any disagreement between the other parties hereto resulting in adverse Claims or demands being made in connection with the Escrow Fund, or in the event that the Escrow Agent is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Fund without liability to anyone until the Escrow Agent shall have received (i) a final non-appealable order of the arbitration panel described in Section 17.8 of the Merger Agreement directing delivery of the Escrow Fund or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, in which event the Escrow Agent shall disburse the Escrow Fund in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that the order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question. The Escrow Agent may, but shall be under no duty whatsoever to, institute or defend any legal proceedings which relate to the Escrow Fund.
(j) The Buyers shall pay the Escrow Agent compensation (as payment in full) for the services to be rendered by the Escrow Agent hereunder in the amount of $2,500 at the time of execution of this Agreement and agree to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). Any fees or expenses of the Escrow Agent or its counsel that are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder and to the extent such property is insufficient to pay the fees and expenses of the Escrow Agent, the fees and expenses will be borne by the Buyers; provided, however, that the Buyers shall reimburse the Sellers to the extent that any fees and expenses due hereunder are paid to the Escrow Agent from the Escrow Fund. The Escrow Agent shall be entitled to reimbursement on demand to the Buyers for all reasonable legal fees and expenses incurred in connection with the preparation and administration of this Agreement or the escrow created hereby which are in excess of its compensation for normal services hereunder, including, without limitation, payment of any reasonable legal fees and expenses incurred by the Escrow Agent in connection with resolution of any Claim by any party hereunder.
(k) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mention the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto.
(l) The Buyers and the Sellers, jointly and severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of the Escrow Fund under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which other expenses that may be imposed upon the Escrow Agent or incurred by assessed against the Escrow Agent in any such payment or other activities under this Agreement. The Buyers and the Sellers undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certificates and governmental reporting in connection with its acceptance of the appointment acting as Escrow Agent hereunder or under this Agreement. The Buyers and the performance of its duties hereunderSellers, unless jointly and severally, agree to indemnify and hold the Escrow Agent is determined harmless from any liability on account of taxes, assessments or other governmental charges, including, without limitation, the withholding or deduction or the failure to have committed an intentional wrongful act withhold or deduct the same, and any liability for failure to obtain proper certifications or to have been grossly negligent properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with respect to its duties under or which arises out of this Escrow Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
(em) The Escrow Agent shall return to have no more or less responsibility or liability on account of any action or omission of any book-entry depository or subescrow agent employed by the Corporation Escrow Agent than any sums delivered such book-entry depository or subescrow agent has to the Escrow Agent pursuant Agent, except to this Escrow Agreement for which the extent that such action or omission of any book-entry depository or subescrow agent was caused by the Escrow Agent has not received release instructions pursuant to Section 4 hereofAgent's own gross negligence, and as to which four years have passed since deliverybad faith or willful misconduct.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment actions or omissions hereunder, except for any act done its own gross negligence or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, except with respect to claims based upon such gross negligence or gross negligence. The Corporation willful misconduct that are successfully asserted against Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Fund or any loss of interest incident to any such delays. 5 INSERT DATE THAT IS THE THIRD ANNIVERSARY OF THE CLOSING DATE.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, unless any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is determined an entity other than a natural person has full power and authority to have committed an intentional wrongful instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(d) Escrow Agent may act or pursuant to have been grossly negligent the advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrow Fund deposited hereunder but is serving as escrow holder only and instructions has only possession thereof. Any payments of such counselincome from the Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation with such counsel tax identification number certification, or nonresident alien certifications. This Section 5(e) and Section 5(b) shall be paid survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or collectability of any security or other document or instrument held by the Corporationor delivered to it.
(g) Reference in this Escrow Agreement Agent shall not be called upon to advise any party as to the Registration Statement wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If, at that time, Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final, nonappealable order of a court of competent jurisdiction.
(i) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final, nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Fund or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, in which event Escrow Agent shall disburse the Escrow Fund in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for identification purposes onlythe presenting party satisfactory to Escrow Agent to the effect that the order is final and nonappealable. Escrow Agent shall act on such court order and legal opinion without further question.
(j) Purchaser and Seller agree to pay and reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its terms duties hereunder (including reasonable fees, expenses and conditions disbursements of its counsel). Any such payment and reimbursement to which Escrow Agent is entitled shall be borne fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. Any fees, expenses, disbursements and advances of Escrow Agent or its counsel that are not thereby incorporated hereinpaid as provided for herein may be taken from any property held by Escrow Agent hereunder.
(k) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers or duties of Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
(l) The other parties hereto authorize Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it reasonably deems appropriate, including, without limitation, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated required to recognize, invest any other agreements between the Corporation, Underwriter and any Subscriberfunds held hereunder except as directed in this Agreement.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable hereunder, except for any error of judgment its own gross negligence or for any act done willful misconduct, and except with respect to claims based upon such gross negligence or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation that are successfully asserted against Escrow Agent, the other parties hereto shall indemnify and hold the harmless Escrow Agent harmless (and any successor to Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Fund, or any loss of interest incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, unless any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is determined delivered to have committed an intentional wrongful Escrow Agent.
(d) Escrow Agent may act or pursuant to have been grossly negligent the advice of legal counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrow Fund but is serving only as escrow holder and instructions only having possession thereof. Any payments of such counselincome from the Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. Buyer and Seller shall provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax identification number certification.
(f) Escrow Agent (and any successor to Escrow Agent) may at any time resign as the escrow agent under this Agreement by delivering the Escrow Fund to any successor to Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The fees for consultation with such counsel resignation of Escrow Agent shall be paid by take effect on the Corporationappointment of a successor to Escrow Agent (including a court of competent jurisdiction).
(g) Reference In the event of any disagreement between Seller and Buyer resulting in this adverse claims or demands being made in connection with the Escrow Agreement Fund, or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Fund, or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, in which events Escrow Agent shall disburse the Escrow Fund in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by legal counsel for the presenting party, reasonably satisfactory to Escrow Agent, to the Registration Statement effect that the order is for identification purposes only, final and its terms non-appealable. Escrow Agent shall act on such court order and conditions are not thereby incorporated hereinlegal opinion without further question.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Tollgrade Communications Inc \Pa\)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Funds held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Escrow Agreement.
(b) The duties Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent from and against any and all losses, liabilities, claims, ac- tions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial Funds held by it hereunder in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrowgood faith, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Fund in accordance with Section 4 hereofFunds, or any loss of interest incident to any such delays.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund entitled to rely upon any order, judgment, certification, xx- xxxx, notice, instrument or other than to faithfully follow the instructions herein contained or writing delivered to it hereunder reasonably believed by the Escrow Agent in accordance with this Escrow Agreementto be authentic, correct and properly and validly served without being required to determine the authen- ticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may rely and act in reliance upon any written notice, instruction, direction, request, waiver, consent, receipt instru- ment or other paper or document which signature reasonably believed by it in good faith believes to be genuine and what it purports may assume that the person purporting to be give notice or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent may conclusively presume that the undersigned repre- sentative of each of the Buyer and Stanhome has full power and authority to instruct the Escrow Agent shall be subject to no liability with respect on behalf of such party unless written notice to the form, execution or validity thereof. If, in the opinion of contrary is delivered to the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any error of judgment or for any act done or step action taken or omitted by itit in accor- dance with such advice, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold except that the Escrow Agent harmless shall be liable for any actions or omissions which result from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent Agent's gross negligence or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementwillful misconduct.
(e) The Escrow Agent does not have any interest in the Escrow Funds deposited hereunder other than as escrow agent hereunder. Any payments from the Escrow Funds shall return be subject to withholding regula- tions then in force with respect to United States taxes and the Corporation any sums delivered to parties hereto will provide the Escrow Agent pursuant with all appropriate information necessary to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryeffectuate such withholdings.
(f) The resignation of the Escrow Agent may consult with, and obtain advice from, legal counsel will take effect only upon the appointment of a successor escrow agent (which may not successor escrow agent shall be counsel to deemed the Corporation"Escrow Agent" for all purposes under this Escrow Agreement from and after the ap- pointment of such successor) jointly designated by the Buyer and Stanhome in the event writing or by any court of any dispute or questions as to the construction of any competent jurisdiction. Upon delivery of the provisions hereof or its duties hereunderEscrow Funds to any successor Escrow Agent, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel Escrow Agent shall be paid by the Corporationdischarged of and from any and all further obligations arising in connection with this Escrow Agreement.
(g) Reference in In the event of any disagreement between Stanhome and the Buyer relating to this Escrow Agreement Agreement, including without limitation with respect to the Registration Statement disposition of the Escrow Funds, or in the event that the Escrow Agent is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a copy of the final arbitration decision directing delivery of the Escrow Funds or (ii) a written agreement executed by Stanhome and the Buyer directing delivery of an Agreed Amount, in which event the Escrow Agent shall disburse such Agreed Amount in accordance with such order or agreement. Any arbitration decision shall be accompa- xxxx by a legal opinion by counsel for identification purposes onlythe presenting party satisfactory to the Escrow Agent to the effect that the arbitration decision is final. The Escrow Agent shall act on such arbitration decision and legal opinion without further question.
(h) The Buyer agrees to pay the Escrow Agent compensation (as payment in full) for the ser- vices to be rendered by the Escrow Agent, and the Buyer agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances in- curred or made by the Escrow Agent in performance of its terms duties hereunder (including reasonable fees, ex- penses and conditions are not thereby incorporated hereindisbursements of its counsel).
Appears in 1 contract
Duties of Escrow Agent. Acceptance by It is agreed that our duties as an escrow agent for the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent security deposit are only such as are herein specifically provided and such duties are provided, being purely ministerial administrative in nature. The Escrow Agent's primary duty , and we shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under incur no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained liability whatsoever except for willful misconduct or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it gross negligence so long as we have acted in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion its disposition of the Escrow Agentsecurity deposit. We are an independent escrow agent and do not represent either the Owner or Tenant with respect to our duties and obligations as escrow agent for the security deposit. Owner and Tenant, for the instructions it receives are ambiguousLease hereby indemnify, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to release and hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for us harmless from any act done or step taken or omitted to be done by it, in good faith, or for any mistake of fact or law, or for anything which it may us in good faith do or refrain from doing in connection herewithperformance of our duties as an escrow agent. Owner and Tenant, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold for the Escrow Agent harmless from and against any and Lease agree to pay all claims, lossescosts, damages, liabilities judgments and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or attorney's fees suffered and incurred by the Escrow Agent us in connection with its acceptance or arising out of our acting as escrow agent hereunder. It is specifically understood and agreed that we are acting in the capacity of escrow agent is an accommodation to both parties. Upon the deposit of the appointment as Escrow Agent hereunder or the performance security deposit with a court of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) competent jurisdiction in the event of a dispute we shall deduct our costs and shall be relieved of all further obligations and responsibilities to Owner and Tenant with respect to the security deposit. The Owner authorizes us to hold all security deposits paid by the tenants. If an Owner designates someone to represent the Owner regarding security inspections and requests to hold security, the Owner must notify us, in writing, as to who the representative might be. Owner or their designated representative shall inspect the property as soon after checkout as possible and before the next tenancy. Owner shall have 72 hrs after expiration of this lease to advise us, in writing, of any dispute damage. If the Owner fails to notify us to hold security, in writing, within that 72 hr period we will refund the entire security deposit to the Tenant. If the Owner instructs us to hold all or questions part of the security deposit, in writing, within that 72 hr period we will continue to hold the entire security deposit and will not release any portion thereof until the Owner and Tenant reach an agreement. When such an agreement is reached both the Tenant and Owner will notify us as to the construction of any agreement and its terms, in writing, as to the agreed settlement and stating exactly how the security deposit should be paid. Owner agrees that we are not responsible for the results of the provisions hereof inspection or its duties hereunderfor failure to return the security deposit to the Tenants pursuant to the above, and it shall incur no liability in acting provided we have acted in good faith in accordance with faith. If we or our agents and/or employees inspect the written opinion and instructions property at the end of such counsel. The fees for consultation with such counsel shall the lease, Owner agrees to be paid bound by the Corporation.
(g) Reference in this Escrow Agreement our inspection report as to the Registration Statement condition of the property. Owner (and Tenant, for the Lease) hereby indemnify, release and hold us harmless from and agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees suffered and incurred by us in connection with or arising out of our inspection of the property after termination of the Lease and/or failure to return the security deposit to the Tenant within 30 days pursuant to NJSA 46:8"21.1 due to our failure to receive the necessary agreement between Owner and Tenant as to how the security deposit is to be applied, or due to our exercising it's rights hereunder to deposit the security deposit in court and seek court approval as to the disposition of the security deposit, provided we have acted in good faith. If Owner and Tenant can not agree, we may seek Court approval for identification purposes only, distribution of funds and its terms and conditions are not thereby incorporated hereindeduct the costs of seeking such approval from the security deposit. Security deposit will be mailed to the Tenant by us within ten days after a satisfactory inspection. Security deposits for leases with a term under 125 days will be held in our non interest bearing escrow account. This paragraph shall survive termination of the Lease.
Appears in 1 contract
Samples: Rental Listing Agreement
Duties of Escrow Agent. Acceptance (a) Escrow Agent is acting solely as a stakeholder under this Section 9.2. Escrow Agent’s duties shall be determined solely by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms express provisions hereof and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agentare purely ministerial in nature.
(ab) The duties During the term of this Agreement, Escrow Agent shall hold and responsibilities deliver the Deposit strictly in accordance with the terms and provisions of this Agreement and shall not commingle the Deposit with any funds of Escrow Agent or others. Escrow Agent shall invest the Deposit in an account at a financial institution satisfactory to Seller and Purchaser, and such account shall have no penalty for early withdrawal. Escrow Agent shall disburse the Deposit in strict accordance with the written instructions of the parties hereto. Escrow Agent shall not disburse the Deposit without at least one business day’s notice to Seller.
(c) Seller and Purchaser are aware that the Federal Deposit Insurance Corporation (“FDIC”) coverage applies only to a maximum amount of $250,000 for each individual depositor. Further, Seller and Purchaser understand that Escrow Agent assumes no responsibility for, nor will Seller and Purchaser hold Escrow Agent liable for, any loss occurring which arises from the fact that the amount of any individual depositor’s account exceeds $250,000 and that the excess amount is not insured by the FDIC, except to the extent caused by the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser further understand that certain banking instruments such as, but not limited to, repurchase agreements and letters of credit are not covered at all by FDIC insurance.
(d) If this Agreement is terminated by the mutual written agreement of Seller and Purchaser, or if Escrow Agent is unable at any time to determine to whom the Deposit should be delivered, or if a dispute develops between Seller and Purchaser concerning the proper disposition of the Deposit, then Escrow Agent shall deliver the Deposit in accordance with the joint written instructions of the Seller and Purchaser. If written instructions are not received by Escrow Agent within ten (10) days after Escrow Agent has served a written request for instructions upon both Seller and Purchaser, the Escrow Agent shall have the right to pay the Deposit into any court of competent jurisdiction in the state where the Property is located and to interplead Seller and Purchaser. Upon the filing of the interpleader action, Escrow Agent shall be limited discharged from any further obligations in connection with this Agreement.
(e) If costs or expenses are incurred by Escrow Agent because of litigation or a dispute between Seller and Purchaser concerning this Agreement (which litigation or dispute does not involve any action, omission or failure to those expressly set forth act by Title Company), Seller and Purchaser shall each pay Escrow Agent one-half of Escrow Agent’s reasonable costs and expenses. Except for such costs and expenses, no fee or charge shall be due or payable to Escrow Agent for its services under this Agreement.
(f) Escrow Agent undertakes only to perform the duties and obligations imposed upon it under the terms of this Agreement, and to do so in strict accordance with the Agreement, and does not undertake to perform any of the covenants, terms and provisions applicable to Seller and Purchaser.
(g) Purchaser and Seller acknowledge and agree that Escrow Agent has assumed no liability except for gross negligence or willful misconduct and that Escrow Agent may seek advice from its own counsel and shall be fully protected in any action taken by it in good faith in accordance with the opinion of its counsel.
(h) The conditions to the Closing shall be the Escrow Agent’s receipt of funds and documents as described in this Section 9.2. Upon receipt of such funds and documents, Escrow Agent shall deliver the items as described in this Agreement.
(i) The funds required from Purchaser and all acts and documents required of Purchaser or Seller in order to close the escrow pursuant hereto shall be deposited with Escrow Agent on the business day prior to the Closing Date, Closing shall be performed no later than 11:00 a.m. (Arizona Time) on the Closing Date, and shall be available for immediate distribution at Closing. Notwithstanding the foregoing, the Purchaser will not be deemed in default under this Agreement for delivery of the funds required to consummate the purchase of the Property in accordance with this Agreement after 1:00 p.m. (Arizona Time) on the Closing Date, so long as the total amount of funds due and owing the Seller are actually received by Seller via wire transfer to an account designated by the Seller (as confirmed by Federal Reserve reference number) on the Closing Date.
(j) Notwithstanding anything to the contrary in this Section 9.2, in the event the Closing does not occur on or before the Closing Date, the Escrow Agent shall, unless it is notified by both parties to the contrary within five (5) business days after the Closing Date, return to the depositor thereof items which were deposited pursuant to this Agreement. The foregoing instruction to return items does not include the Deposit. Any such return shall not, however, relieve either party of any liability it may have relating to its wrongful failure to close.
(k) Escrow Agent shall not be subject toresponsible or liable in any manner whatsoever for the correctness, nor obligated to recognizegenuineness or validity of any document or instrument, or any other agreements between the Corporationsignature thereon, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance deposited with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with pursuant to this Escrow Agreement. The Escrow Agent may rely and act in reliance upon any written noticesuch document or instrument, instruction, direction, request, waiver, consent, receipt or other paper or document which it Escrow Agent in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect duly authorized, without investigation as to the formcorrectness, execution genuineness or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable except for any error the performance of judgment such duties and obligations as are specifically set forth in this Agreement and no implied covenants or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligenceobligations shall be read into this Agreement against Escrow Agent. The Corporation shall indemnify and hold the Escrow Agent harmless from is not chargeable with knowledge, and against has no duties with respect to any other agreements between Seller and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Purchaser. Escrow Agent or incurred shall not be responsible to see to the correct application of any funds disbursed by it pursuant to this Agreement.
(l) Seller and Purchaser acknowledge that the transaction contemplated hereunder shall be closed by delivering executed documents and the other closing deliveries to the Escrow Agent in connection accordance with its acceptance of the appointment as customary written instructions.
(m) Upon request by Seller and Purchaser, Escrow Agent hereunder shall prepare a closing or the performance of its duties hereunder, unless the settlement statement for such party.
(n) Escrow Agent is determined familiar with and understands the U.S. Foreign Corrupt Practices Act, 15 U.S.C. Sec. 78dd-1, et seq., and any other anti-corruption laws and regulations relevant to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementthe Agreement and has not and will not violate these laws.
(eo) The President of the United States has issued Executive Order 13224, in conjunction with the Office of Foreign Assets Control (“OFAC”). This order bans any United States person from doing business with any person, entity or group specially designated by the U.S. Secretary of State or Secretary of the Treasury as a terrorist or terrorist entity. OFAC maintains a list of these persons, entities and groups, known as the Specially Designated Nationals and Blocked Persons List (“SDN List”). To comply with this order, Escrow Agent shall return to not enter into contracts or other agreements with any person whose name appears on the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliverySDN List.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Consolidated Tomoka Land Co)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The This Agreement expressly sets forth all the duties and responsibilities of the Escrow Agent shall with respect to any and all matters pertinent hereto. No implied duties or obligations will be limited to those expressly set forth in read into this Agreement against the Escrow Agreement and Agent. The Escrow Agent is not bound by the provisions of any agreement among the other parties hereto except this Agreement. The parties hereto agree that the Escrow Agent shall is not acting as a trustee or in any fiduciary capacity, that no trust is intended to be, or will be, created, and that the duties of the Escrow Agent hereunder are purely administrative in nature. The Escrow Agent will not be subject to, nor obligated under any duty to recognize, give the Escrowed Shares held by it hereunder any other agreements between greater degree of care than it gives its own similar property. The Escrow Agent does not have any interest in the Corporation, Underwriter Escrowed Shares deposited hereunder but is serving as escrow holder only and any Subscriberhaving only possession thereof.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall will not be liable for any error of judgment judgement, or for any act done or step taken or omitted by it, it in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused except for its own fraud, negligence or wilful misconduct. In the absence of fraud, negligence or wilful misconduct by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent, the Escrow Agent harmless will not be liable to the Officers or NNC for any loss or injury to them.
(c) Subject to section 6(b), upon the Escrow Agent’s delivery of any Escrowed Shares in accordance with this Agreement, the Escrow Agent will be automatically and immediately released from all obligations under this Agreement in respect of such Escrowed Shares.
(d) Subject to section 6(b), the Escrow Agent:
(i) may, if in its sole discretion it deems it necessary or desirable, retain such independent counsel or other advisors as it reasonably may require for the purpose of discharging or determining its duties, obligations or rights hereunder;
(ii) may act pursuant to the advice of its legal counsel or the reasonable advice of external legal counsel to NNC with respect to any matter relating to this Agreement;
(iii) will not be required to institute legal proceedings of any kind and against will not be required to defend any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, legal proceedings which may be imposed instituted against it in respect of the subject matter of this Agreement;
(iv) will be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof;
(v) may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so;
(vi) may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct the Escrow Agent or incurred by on behalf of that party unless written notice to the contrary is delivered to the Escrow Agent Agent; and
(vii) is not required to expend or risk its own funds or otherwise incur financial liability in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of any of its duties hereunderor in the exercise of any of its rights or powers, unless or do anything not expressly provided for herein; and
(viii) retains the right not to act and will not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, the Escrow Agent is determined Agent, in its sole judgment, determines that such act might cause it to have committed an intentional wrongful act be in non-compliance with any applicable anti-money laundering or to have been grossly negligent with respect to its duties under this Escrow Agreementanti-terrorist legislation, regulation or guideline.
(e) The In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with any Escrowed Shares or in the event that the Escrow Agent shall return is in doubt as to what action it should take hereunder, the Corporation any sums delivered Escrow Agent will be entitled to retain such Escrowed Shares until the Escrow Agent has received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of such Escrowed Shares or (ii) a written agreement executed by the other Affected Parties hereto directing delivery of such Escrowed Shares, in which event the Escrow Agent will disburse such Escrowed Shares in accordance with such order or agreement. Any court order must be accompanied by a legal opinion by counsel for the presenting party reasonably satisfactory to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, effect that the order is final and as to which four years have passed since delivery.
(f) non-appealable. The Escrow Agent may consult with, will act on such court order and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationwithout further question.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, bound in any way by any other agreements agreement or contract between the CorporationSeller and Buyer, Underwriter and any Subscriber.
(b) The duties of the whether or not Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in naturehas knowledge thereof. The Escrow Agent's primary duty ’s only duties and responsibilities shall be to keep custody of hold the Xxxxxxx Money and safeguard the Escrow Fund during the period other documents delivered to it as agent and to dispose of the escrow, to invest monies held in the Escrow Fund Xxxxxxx Money and such documents in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The terms of this Agreement. Without limiting the generality of the foregoing, Escrow Agent shall have no responsibility to protect the Xxxxxxx Money and shall not be under no obligations in respect of the Escrow Fund other than responsible for any failure to faithfully follow the instructions herein contained demand, collect or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon enforce any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability obligation with respect to the formXxxxxxx Money or for any diminution in value of the Xxxxxxx Money from any cause, execution other than Escrow Agent’s gross negligence or validity thereofwillful misconduct. IfSeller and Buyer hereby jointly agree to indemnify, defend and hold Escrow Agent harmless against any and all loss, damage or expense (including but not limited to reasonable attorneys’ fees and expenses, if any, and the enforcement of this indemnity) which it may incur by reason of performance, in the opinion absence of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence, of its obligations and duties as Escrow Agent. The Corporation shall indemnify and hold the Escrow Agent harmless from may, at the expense of Seller and against any Buyer, consult with counsel and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent accountants in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The . Escrow Agent shall return to the Corporation be fully protected in any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereofact taken, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute suffered or questions as to the construction of any of the provisions hereof or its duties hereunder, and permitted by it shall incur no liability in acting in good faith in accordance with the written opinion advice of counsel and instructions of such counselaccountants. The fees for consultation Escrow Agent shall not be obligated to take any action hereunder that may, in its reasonable judgment, involve it in any liability unless Escrow Agent shall have been furnished with such counsel shall be paid by the Corporationreasonable indemnity satisfactory in amount, form and substance to Escrow Agent.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Purchase and Sale Agreement (J.P. Morgan Real Estate Income Trust, Inc.)
Duties of Escrow Agent. Acceptance by In addition to the Duties set forth in Article VIII and Section 6.3 of the Share Purchase Agreement, the Duties of the Escrow Agent of its duties under this Escrow Agreement is subject to shall include the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.following:
(a) The duties Escrow Agent shall hold and responsibilities safeguard the Escrow Shares during the Escrow Period, shall treat such Escrow Fund as a trust fund in accordance with the terms of this Agreement and Article VIII and not as the property of Purchaser, and shall hold and dispose of the Escrow Agent shall be limited to those expressly set forth Shares only in this Escrow Agreement and accordance with the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriberterms hereof.
(b) The duties of Escrow Shares shall be voted by the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements the instructions received by the Escrow Agent from the Escrow Fund in accordance with Section 4 hereof.
(c) The Sellers' Representative. In the absence of such instructions, the Escrow Agent shall be under no obligations in obligation to vote such shares. The Escrow Agent need not forward proxy information, annual or other reports or other information received from Purchaser with respect to the Escrow Shares.
(c) Promptly following termination of the Escrow Period as set forth in Section 3 hereof, the Escrow Agent (i) shall deposit with the Purchaser's stock transfer agent the number of Escrow Shares and other property in the Escrow Fund in excess of the amount of such Escrow Shares or other than property (as set forth in a certificate of the Purchaser) as being sufficient to faithfully follow the instructions herein contained or satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to the Escrow Agent in accordance prior to termination of the Escrow Period with this respect to facts and circumstances existing prior to expiration of the Escrow AgreementPeriod and (ii) shall cause such transfer agent to transfer such Escrow Shares and other property to the Sellers' Representative for distribution to the Sellers. The As soon as all such claims have been resolved, the Escrow Agent shall cause such transfer agent to deliver to such Sellers' Representative for distribution to the Sellers all of the Escrow Shares and other property remaining in the Escrow Fund and not required to satisfy such claims and expenses. Each Seller shall receive that number of Escrow Shares equivalent to such Seller's percentage interest in the Escrow Fund as set forth in Annex B hereto, subject, in the case of the Escrow Shares applicable to the First Milestone Shares and the Second Milestone Shares, to the issuance of the First Milestone Shares or the Second Milestone Shares, as the case may rely be, and act receipt by the Escrow Agent thereof.
(d) Pursuant to Section 8.3(d) of the Share Purchase Agreement, for the purpose of compensating Purchaser for its Losses pursuant to the Share Purchase Agreement, the Purchaser Common Stock in the Escrow Fund shall be valued at the Purchaser Stock Price. Purchaser shall set forth the Purchaser Stock Price in a certificate delivered to the Escrow Agent. If the value to be distributed to Purchaser (or to the Sellers' Representative for distribution to the Sellers upon any written noticea termination of the escrow) is not evenly divisible by the Purchaser Stock Price, instructionthe Escrow Agent shall round down the number of shares to be distributed to the next highest number of shares and shall cause the transfer agent of the Escrow Shares to distribute that number. In lieu of the fractional interest not distributed, directionPurchaser shall furnish to the Escrow Agent, requestand the Escrow Agent (or such stock transfer agent) in turn will distribute to Purchaser, waiver, consent, receipt or other paper or document cash equal to such fractional interest times the Purchaser Stock Price. Purchaser shall be deemed to have purchased such fractional interests with respect to which it in good faith believes has furnished funds to be genuine the Escrow Agent. Accordingly, the Escrow Agent, upon receipt of such funds, shall deliver the corresponding number of shares to Purchaser . In all events, Purchaser shall so purchase only a whole number of shares. Any cash so received from Purchaser and what it purports to be and not so immediately distributed by the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred retained by the Escrow Agent in connection with its acceptance as part of the appointment as Escrow Agent hereunder or the performance of its duties hereunderFund, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may but need not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationinvested.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Escrow Agreement (Com21 Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms 5.1 The parties acknowledge and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.that:
(a) The the duties and responsibilities obligations of the Escrow Agent shall be limited to those expressly set forth in determined solely by the provisions of this Escrow Agreement and and, accordingly, the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between responsible except for the Corporation, Underwriter performance of such duties and any Subscriber.obligations as the Escrow Agent has undertaken in this Agreement;
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable responsible for any error of judgment in judgement or for any act done or step taken or omitted to be taken by it, the Escrow Agent in good faith, faith or for any mistake of mistake, in fact or law, or for anything which it the Escrow Agent may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold with this Agreement except arising out of the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent Agent’s own gross negligence or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.willful misconduct;
(ec) The Escrow Agent shall return to the Corporation if there is any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and question as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof of this Agreement or its the Escrow Agent’s duties hereunderunder this Agreement, the Escrow Agent shall have the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and it the Escrow Agent shall incur no liability responsibility and shall be fully protected in acting in good faith in accordance with the written any opinion and instructions or instruction of such counsel. The fees for ; if the Escrow Agent’s consultation with legal counsel (including an estimate of the fees of such legal counsel) is approved in writing by the Corporation before any such consultation, the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;
(d) the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Securityholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be paid entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor certificates representing the Escrowed Shares then in its possession upon payment by the Corporation.Corporation of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) Reference if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Securityholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, are in or appear to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Securityholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Vancouver, British Columbia and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Securityholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Corporation and the Securityholder acknowledge and agree that the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement;
(j) the provisions of this Agreement are not intended to and shall not restrict or remove any other rights which the Escrow Agent may have at law or in equity to seek relief or direction from any court of competent jurisdiction in addition to such rights as are expressly set forth herein; and
(k) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Registration Statement is Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed Shares.
5.2 The parties hereby acknowledge that the Escrow Agent has acted and will continue to act as the solicitors for identification purposes onlythe Corporation with respect to various matters and agree that the Escrow Agent shall not, by virtue of acting as Escrow Agent under this Agreement, be disqualified from continuing to act for and represent the Corporation in any manner whatsoever. Despite its terms and conditions are duties as Escrow Agent, the parties (other than the Escrow Agent) agree that neither the Escrow Agent’s services under this Agreement, nor any provision of this Agreement, whether express or implied, shall restrict or inhibit the Escrow Agent in any way from acting as the Corporation’s legal counsel in any action, dispute, controversy, arbitration, suit or negotiation arising under this Agreement or under any other agreement or in any other manner or context whatsoever, whether or not thereby incorporated hereindirectly or indirectly involving any of the parties to this Agreement.
Appears in 1 contract
Samples: Voluntary Escrow Agreement
Duties of Escrow Agent. Acceptance by (a) Escrow Agent shall have the duty to give the Escrow Fund held by it hereunder no lesser degree of care than it gives its own similar property, but shall not be required to invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) Escrow Agent of shall not be liable, except for its duties under this Escrow Agreement is subject to the following terms and conditionsown gross negligence or willful misconduct and, which all parties to this Escrow Agreement agree shall govern and control except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against Escrow Agent, the rightsother parties hereto shall jointly and severally indemnify and hold harmless Escrow Agent (and any successor Escrow Agent) from and against any and all losses, dutiesliabilities, liabilities claims, actions, damages and immunities expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Fund, or any loss of interest incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(ad) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes pursuant to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability advice of counsel with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or matter relating to this Escrow Agreement, then the Escrow Agent is authorized to hold Agreement and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain in accordance with such advice.
(e) Escrow Agent does not have any interest in the Escrow Fund deposited hereunder but is serving as escrow holder only and having only possession thereof. Sellers shall be responsible for the payment of taxes related to Interest earned on the Escrow Fund. Any payments of income from doing this Escrow Fund shall be subject to withholding regulations then in connection herewith, unless caused by its willful misconduct or gross negligenceforce with respect to United States taxes. The Corporation parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or non-resident alien certifications. This Section 5(e) and Section 5(b) shall indemnify survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(g) Escrow Agent shall not be called upon to advise any party as to the advisability of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) Escrow Agent (and hold any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent harmless jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from and against any and all claimsfurther obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, lossesEscrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(i) In consideration for its services hereunder, damagesSellers and Buyer agree, liabilities jointly and expensesseverally, to pay all of the fees, costs, charges and expenses of the Escrow Agent, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or are incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties and obligations hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) . The Escrow Agent shall return submit written information (including copies of receipts) to Sellers and Buyer with respect to the Corporation any sums delivered nature and amount of all expenses which it may incur prior to payment of the same. As between each other, Sellers and Buyer agree that all amounts which are to be paid to or on behalf of Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
shall be paid one-half by Sellers (f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion percentages set forth on Exhibit A) and instructions one-half by Buyer. Sellers and Buyer each agree to indemnify the other, and their respective subsidiaries and affiliates for any and all liability, loss, damages, costs or expenses which the other may incur as a result of such counselor in connection with the failure or refusal of the other party to satisfy its obligations hereunder. The fees for consultation with such counsel Amounts payable to Escrow Agent by Sellers hereunder shall be paid out of the Escrow Fund and may be debited therefrom by Escrow Agent upon notice to Sellers' Representative. Amounts payable to Escrow Agent by Buyer hereunder shall be paid by the CorporationBuyer upon Escrow Agent's demand.
(gj) Reference No printed or other matter in this any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agreement Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
(k) The other parties hereto authorize Escrow Agent, for any securities held hereunder, to use the Registration Statement is for identification purposes onlyservices of any United States central securities depository it reasonably deems appropriate, including, without limitation, the Depositary Trust Company and its terms and conditions are not thereby incorporated hereinthe Federal Reserve Book Entry System.
Appears in 1 contract
Samples: Stock Purchase Agreement (Reliant Building Products Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable liable, except for any error of judgment its own gross negligence or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, except with respect to claims based upon such gross negligence or gross negligence. The Corporation willful misconduct that are successfully asserted against Escrow Agent, the others hereto shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent arising out of and in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(ec) The Escrow Agent shall return be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the Corporation any sums contrary is delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryAgent.
(fd) The Escrow Agent may consult with, act pursuant to the advice of counsel with respect to any matter relating to this Agreement and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrow Fund deposited hereunder but is serving as escrow holder only and instructions having only possession thereof. Any payments of such counselincome from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation with such counsel tax identification number certification, or non-resident alien certifications. This Section 5(e) and Section 5(b) shall be paid survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by the Corporationor delivered to it.
(g) Reference Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agreement Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the Registration Statement other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non- appealable order of a court of competent jurisdiction.
(h) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Fund or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, in which event Escrow Agent shall disburse the Escrow Fund in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for identification purposes onlythe presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall act on such court order and legal opinion without further question.
(i) Buyers and Principals shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of $_________ at the time of execution of this Agreement and $_____________ annually thereafter and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its terms duties hereunder (including reasonable fees, expenses and conditions disbursements of its counsel). Any such compensation and reimbursement to which Escrow Agent is entitled shall be borne 50% by Buyer, 44.3% by Spooner and 5.7% by Parsons. Any fees or expenses of Xxxxxx Agent or its counsel that are not thereby incorporated hereinpaid as provided for herein may be taken from any property held by Escrow Agent hereunder.
(j) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
Appears in 1 contract
Samples: Escrow Agreement (Xfone Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrowed Cash held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscribercash held hereunder except as directed in this Agreement.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment actions or omissions hereunder, except for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its own willful misconduct or gross negligence. The Corporation and, except with respect to claims based upon such willful misconduct that are successfully asserted against Escrow Agent, the Parties shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' fees’ fees and disbursements, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent arising out of and in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(ec) The Escrow Agent shall return be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the Corporation any sums contrary is delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryAgent.
(fd) The Escrow Agent may consult with, act pursuant to the advice of counsel with respect to any matter relating to this Agreement and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrowed Cash deposited hereunder but is serving as escrow holder only and instructions has only possession thereof. Any payments of such counselincome from the Escrowed Cash shall be subject to withholding regulations then in force with respect to United States taxes. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation tax identification number certification, or nonresident alien certifications. This Section 7 shall survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with such counsel shall be paid by the Corporationrespect to any securities or other property deposited hereunder.
(g) Reference Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrowed Cash to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agreement Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is ten (10) days after the date of delivery of its written notice of resignation to the Registration Statement is Parties. If, at that time, Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent’s sole responsibility after that time shall be to retain and safeguard the Escrowed Cash until receipt of a designation of successor Escrow Agent or a joint written disposition instruction from the Parties or a final, nonappealable order of a court of competent jurisdiction.
(h) The Parties shall pay Escrow Agent, at its standard hourly rates, for identification purposes onlyservices rendered by Escrow Agent hereunder and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its terms duties hereunder (including reasonable fees, expenses and conditions disbursements of its counsel). Any fees or expenses of Escrow Agent or its counsel that are not thereby incorporated hereinpaid as provided for herein may be taken from any property held by Escrow Agent hereunder.
Appears in 1 contract
Samples: Escrow Agreement (Deer Valley Corp)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) S2.01. The duties and responsibilities of the Escrow Agent shall be limited receive and hold the Escrow Fund pursuant to those expressly set forth in the terms of this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard protect the Escrow Fund during as security for the period of obligations described in S1.04 above. Any interest or other income earned by the escrow, to invest monies assets held in the Escrow Fund shall also be protected until the Escrow Fund is disbursed as provided below.
S2.02. The Escrow Agent shall disburse part or all of the Escrow Fund only in accordance with Section 2 hereof Article III below. All interest and to make disbursements from other income earned, if any, on the Escrow Fund at the time of disbursement shall be distributed in accordance with Section 4 hereofthe same proportion as the distribution of the Escrow Fund. On distribution of all the Escrow Fund, except as otherwise provided under Article IV below, this Escrow Agreement shall terminate.
(c) S2.03. Upon written request, the Escrow Agent shall provide Transferors and/or Transferees with reports of the assets held and any amounts earned or distributed in the Escrow Fund.
S2.04. The Escrow Agent shall be under no obligations in respect obligated only for the performance of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent duties that are specifically set forth in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon shall be protected in acting or refraining from acting on any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes instrument believed to be genuine and what it purports to be and have been signed or presented by the Escrow Agent shall be subject to no liability with respect to the form, execution proper party or validity thereofparties. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do and believed to be authorized by this Escrow Agreement nor for any action taken or refrain from doing omitted in connection herewithaccordance with the advice of the Escrow Agent's counsel.
S2.05. The Escrow Agent shall have no liability under, unless caused by its or duty to inquire into the terms and provisions of this Agreement or the Definitive Agreement. It is agreed that the Escrow Agent's duties are purely ministerial in nature and that the Escrow Agent shall incur no liability whatsoever except for willful misconduct or gross negligence. The Corporation shall indemnify and hold negligence so long as the Escrow Agent harmless from and against has acted in good faith. The Escrow Agent shall not be bound by any and all claimsmodification, lossesamendment, damagestermination, liabilities and expensescancellation, including reasonable attorneys' feesrescission, which may be imposed upon or supersession of this Escrow Agreement and, if the Escrow Agent or incurred by the Escrow Agent Agent's duties are affected in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunderany way, unless the Escrow Agent is determined has given prior written consent to have committed an intentional wrongful act or to have been grossly negligent with respect to its any such agreement.
S2.06. The Escrow Agent may at any time resign from the duties under this Escrow Agreement.
(e) The Agreement by giving written notice of resignation to the parties at their addresses set forth in Article V, below, at least 10 days prior to the date specified for the resignation to take effect. On the effective date of the resignation, the Escrow Fund shall be delivered by the Escrow Agent to the successor Escrow Agent, or to the national banking association that may be designated in writing jointly by Transferors and Transferees. All of the obligations of Escrow Agent shall return to the Corporation any sums delivered to cease and terminate on delivery of the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryFund.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Stock Escrow and Security Agreement (Integrated Performance Systems Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall not be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained liable, except for its own gross negligence or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written noticewillful misconduct and, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability except with respect to the form, execution claims based upon such gross negligence or validity thereof. If, in the opinion of willful misconduct that are successfully asserted against the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent is authorized (and any successor to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(dAgent) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Fund, or any loss of interest incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, unless any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is determined an entity other than a natural person has full power and authority to have committed an intentional wrongful instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(d) Escrow Agent may act or pursuant to have been grossly negligent the advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrow Fund deposited hereunder but is serving as escrow holder only and instructions having only possession thereof. Any payments of such counselincome from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation with such counsel tax identification number certification, or non-resident alien certifications. This Section 5(e) and Section 5(b) hereof shall be paid survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness, or the collectability of any security or other document or instrument held by the Corporationor delivered to it.
(g) Reference in this Escrow Agreement Agent shall not be called upon to advise any party as to the Registration Statement wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) Escrow Agent (and any successor to the Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor escrow agent (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(i) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Fund or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, in which event Escrow Agent shall disburse the Escrow Fund in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for identification purposes onlythe presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall act on such court order and legal opinion without further question.
(j) Buyer and Seller shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of $_________ at the time of execution of this Agreement and $_____________ annually thereafter and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its terms duties hereunder (including reasonable fees, expenses and conditions are not thereby incorporated hereindisbursements of its counsel). Any such compensation and reimbursement to which Escrow Agent is entitled shall be evenly split by Buyer and Seller.
(k) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
(l) The other parties hereto authorize Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it reasonably deems appropriate, including, without limitation, the Depositary Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hydrochem International Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to have no duties or responsibilities hereunder except those expressly set forth herein. The Escrow Agent shall have the duty to give the Escrow Fund held by it hereunder no lesser degree of care than it gives its own similar property, but shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement and the Escrow Agent Agreement. Uninvested funds held hereunder shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriberearn or accrue interest.
(b) The duties Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Responsible Party shall indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with this Escrow Agreement, and in connection therewith, to indemnify the Escrow Agent against any and all expenses, including attorneys’ fees and costs of defending any such action, suit, or proceeding or resisting any such claim. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Amount, or any loss of interest incident to any such delays. In no event shall the Escrow Agent are only be liable for incidental, indirect, special, consequential or punitive damages (including, but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such as are herein specifically provided loss or damage and such duties are purely ministerial in natureregardless of the form of action. The Escrow Agent's primary duty Agent shall not be obligated to keep custody of and safeguard take any legal action or commence any proceeding in connection with the Escrow Fund, any account in which the Escrow Fund during is deposited, this Escrow Agreement or the period of the escrowPurchase Agreement, or to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereofappear in, prosecute or defend any such legal action or proceeding.
(c) The Escrow Agent shall be under no obligations in respect entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreementservice thereof. The Escrow Agent may rely and act in reliance upon any written notice, instruction, direction, request, waiver, consent, receipt instrument or other paper or document which signature believed by it in good faith believes to be genuine and what it purports may assume that the person purporting to be give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct the Escrow Agent shall be subject to no liability with respect on behalf of that party unless written notice to the form, execution or validity thereof. If, in the opinion of contrary is delivered to the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) Should any controversy arise involving the parties hereto or any of them or any other person, firm or entity with respect to this Escrow Agreement or the Escrow Fund, or should a substitute escrow agent fail to be designated as provided in Section 7(h) below, or if the Escrow Agent should be in doubt as to what action to take, the Escrow Agent shall have the right, but not the obligation, to institute a petition for interpleader in any court of competent jurisdiction to determine the rights of the parties hereto. Should a petition for interpleader be instituted, or should the Escrow Agent be threatened with litigation or become involved in litigation in any manner whatsoever in connection with this Escrow Agreement or the Escrow Fund, each of the parties hereto, jointly and severally, agrees to reimburse the Escrow Agent for its reasonable attorneys’ fees and any and all other expenses, losses, costs and damages incurred by the Escrow Agent in connection with or resulting from such threatened or actual litigation or arbitration prior to any disbursement hereunder.
(e) The Escrow Agent does not have any interest in the Escrow Fund and is serving as escrow holder only and having only possession thereof. The Responsible Party shall be responsible for the payment of any and all taxes earned on the Escrow Fund and related to amounts distributed from the Escrow Fund to him. Any payments of income from the Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The Responsible Party will provide the Escrow Agent herewith appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or non-resident alien certifications.
(f) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(g) The Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The Escrow Agent shall otherwise not be liable for any error actions or omissions of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewithkind, unless caused by its willful misconduct or its gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(eh) The Escrow Agent shall return (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the Corporation other parties hereto in writing, or to any sums delivered to court of competent jurisdiction, whereupon the Escrow Agent pursuant to shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement for Agreement. The resignation of the Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received release instructions pursuant a designation of a successor Escrow Agent, the Escrow Agent’s sole responsibility after that time shall be to Section 4 hereof, retain and as to which four years have passed since deliverysafeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(fi) As compensation for its services hereunder, the Responsible Party shall pay to the Escrow Agent fees in an amount equal standard hourly rates as such fees are earned, and in addition, shall reimburse the Escrow Agent for all of its reasonable out of pocket expenses, including attorneys’ fees, telephone and facsimile costs, postage (including Express Mail and overnight delivery charges), copy charges and the like. The Responsible Party shall promptly pay such amounts to Escrow Agent upon receipt of an itemized invoice.
(j) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this agreement against the Escrow Agent. The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to bound by the Corporation) in the event provisions of any dispute or questions as to agreement among the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in other parties hereto except this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated hereinAgreement.
Appears in 1 contract
Samples: Preferred Unit Purchase Agreement (Elandia International Inc.)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable liable, except for any error of judgment its own gross negligence or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, except with respect to claims based upon such gross negligence or gross negligence. The Corporation willful misconduct that are successfully asserted against Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Fund, or any loss of interest or principal incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, unless any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is determined an entity other than a natural person has full power and authority to have committed an intentional wrongful instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(d) Escrow Agent may act or pursuant to have been grossly negligent the advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrow Fund deposited hereunder but is serving as escrow holder only and instructions having only possession thereof. Any payments of such counselincome from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation with such counsel tax identification number certification, or non-resident alien certifications. This Section 5(e) and Section 5(b) shall be paid survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by the Corporationor delivered to it.
(g) Reference in this Escrow Agreement Agent shall not be called upon to advise any party as to the Registration Statement wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(i) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Fund or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, in which event Escrow Agent shall disburse the Escrow Fund in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for identification purposes onlythe presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall act on such court order and legal opinion without further question.
(j) Buyer and Seller shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of $2,792.00 at the time of execution of this Agreement and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its terms duties hereunder (including reasonable fees, expenses and conditions are not thereby incorporated hereindisbursements of its counsel). Any such compensation and reimbursement to which Escrow Agent is entitled shall be borne equally by Buyer and Seller.
(k) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
(l) The other parties hereto authorize Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it reasonably deems appropriate, including, without limitation, the Depositary Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Samples: Asset Purchase Agreement (Outsource International Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and treat the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between Funds with such degree of care as it treats it own similar property. It is agreed that the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided provided, and such duties are purely ministerial in naturethe Escrow Agent shall have no other duties, implied or otherwise. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrowduties are as a depository only, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to incur no responsibility or liability with respect to the formwhatsoever, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable except for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its 's willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, with counsel of its choice and obtain advice from, legal counsel (which may shall not be counsel responsible or liable for any action taken, suffered or omitted to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and be taken by it shall incur no liability in acting in good faith in accordance with the written opinion and instructions advice of such counselcounsel (subject to the exception set forth above in the prior sentence). Except where the terms of this Agreement expressly refer thereto, the Escrow Agent shall not be bound in any way by any of the terms of the Purchase Agreement or any other agreement to which one or more of, Buyer or Sellers are parties, whether or not the Escrow Agent has knowledge thereof, and the Escrow Agent shall not in any way be required to determine whether or not the Purchase Agreement or any other agreement has been complied with by Buyer or Sellers or any other party thereto. In the event that the Escrow Agent shall be uncertain as to any of its duties or rights hereunder, it shall be entitled to refrain from taking action other than to keep safely all property held in escrow until it shall be directed otherwise pursuant to a joint written notice from and executed by Buyer and Sellers or a court order, and the Escrow Agent shall not be responsible or liable for any damages while waiting for such joint written notice or court order. This Agreement shall not create any fiduciary duty of the Escrow Agent to Buyer or Sellers or any other person or entity whatsoever. The fees for consultation with Escrow Agent shall provide monthly statements identifying transactions, transfers or holdings of the Escrow Funds and each such counsel statement shall be paid deemed to be correct and final upon receipt thereof by the Corporation.
(g) Reference parties hereto unless the Escrow Agent is notified in this Escrow Agreement writing to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated hereincontrary within thirty (30) business days of the date of such statement.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by (a) Escrow Agent shall not be under any duty to give the Escrow Fund held by it hereunder any greater degree of care than it gives its own similar property.
(b) Escrow Agent of shall not be liable, except for its duties under this Escrow Agreement is subject to the following terms and conditionsown gross negligence or willful misconduct and, which all parties to this Escrow Agreement agree shall govern and control except with respect to claims based upon such gross negligence or willful misconduct that are successfully adjudicated against Escrow Agent, the rightsother parties hereto shall jointly and severally indemnify and hold harmless Escrow Agent (and any successor Escrow Agent) from and against any and all losses, dutiesliabilities, liabilities claims, actions, penalties, judgments, settlements, suits, proceedings, litigation, investigations, damages, costs and immunities expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with (i) Escrow Agent’s execution and performance of this Escrow Agreement, or (ii) its following any instructions or other directions, whether joint or singular, from the parties, except to the extent that its following any such instruction or direction is not permitted hereby. Without limiting the foregoing, Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Fund, or any loss of interest incident to any such delays. Escrow Agent shall have no duty to solicit any payments which may be due it or the [IBA], including, without limitation, the Escrow Fund nor shall Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(ad) The duties Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and responsibilities of shall not be liable for any action taken or omitted by it in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the Escrow Fund deposited hereunder but is serving as escrow holder only and having only possession thereof. This Section 4(e) and Section 4(b) shall survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent shall be limited makes no representation as to those expressly set forth in this Escrow Agreement and the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(g) Escrow Agent shall not be subject tocalled upon to advise or supervise any party as to the wisdom in investing, nor obligated selling or retaining, or taking or refraining from any action with respect to recognize, any securities or other agreements between the Corporation, Underwriter and any Subscriberproperty deposited hereunder.
(bh) Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(i) Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The duties resignation of Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction), or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent’s sole responsibility after that time shall be to retain and safeguard Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non‑appealable order of a court of competent jurisdiction. Any entity into which 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 may be transferred, shall be Escrow Agent under this Escrow Agreement without further act.
(j) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody Fund, or (ii) a written agreement executed by the other parties hereto directing delivery of and safeguard the Escrow Fund during the period of the escrowFund, to invest monies held in which event Escrow Agent shall disburse the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.such
(ck) The Escrow Agent Each of Holdings, on the one hand, and Franchisee, on the other hand, shall be under no obligations in respect pay one-half of the fees and expenses (including reasonable and documented attorneys’ fees) of the Escrow Fund other than to faithfully follow Agent for the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes services to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy rendered by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Agreement. Escrow Agent has not received release instructions pursuant shall receive compensation (as payment in full) for the services to Section 4 hereof, be rendered hereunder in the amount of Seven Hundred and as to which four years have passed since delivery00/100 Dollars ($700.00) at the time of execution of this Agreement.
(fl) The No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent’s name or the rights, powers, or duties of Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid issued by the Corporationother parties hereto or on such parties’ behalf unless Escrow Agent shall first have given its specific written consent thereto.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable liable, except for any error of judgment its own gross negligence or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, except with respect to claims based upon such gross negligence or gross negligence. The Corporation willful misconduct that are successfully asserted against Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Funds, or any loss of interest incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, unless any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that any one of two undersigned representatives of any party hereto which is determined an entity other than a natural person has full power and authority to have committed an intentional wrongful instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(d) Escrow Agent may act or pursuant to have been grossly negligent the advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrow Funds deposited hereunder but is serving as escrow holder only and instructions of such counselhaving only possession thereof. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation with such counsel tax identification number certification, or non-resident alien certifications. This Section 5(e) and Section 5(b) shall be paid survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by the Corporationor delivered to it.
(g) Reference in this Escrow Agreement Agent shall not be called upon to advise any party as to the Registration Statement wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(i) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Funds until Escrow Agent shall have received (i) a final non-appealable award of an arbitration panel as contemplated by Section 3(c) directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement.
(j) Buyer and Seller shall pay Escrow Agent compensation (as payment in full) for identification purposes onlythe services to be rendered by Escrow Agent hereunder as set out on the attached Exhibit A and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its terms duties hereunder (including reasonable fees, expenses and conditions are disbursements of its counsel). The fees and expenses of the Escrow Agent shall be paid 50% by the Buyer and 50% by the Seller. The Investment Related Fees set forth on Exhibit A attached hereto shall be charged against the income of the Escrow Fund and any other fees and expenses of the Escrow Agent not thereby incorporated hereinpaid within thirty days of invoice to the Buyer and Seller may be taken from the Indemnity Escrow Fund.
(k) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
(l) The other parties hereto authorize Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it reasonably deems appropriate, including, without limitation, the Depositary Trust Company and the Federal Reserve Book Entry System as necessary.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by It is understood and agreed further that the Escrow Agent shall:
A. be protected in acting upon any notice, request, certificate, approval, consent or other paper believed by it to be (i) genuine, (ii) signed by the proper party or parties and (iii) in accordance with the terms of this Agreement;
B. be deemed conclusively to have given and delivered any notice required to be given or delivered hereunder if the same is in writing, signed by any of its duties under this Escrow Agreement is subject authorized officers and mailed, by registered or certified mail, addressed to the following terms Company at 00000 Xxxxxxxxxx Xxxx., Xxxxx X, Xxxxxxx, Xxxxxxxxxx 00000 and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of Purchasers at their addresses as set forth on Exhibit A;
C. provide the Company with a detailed statement which summarizes all activity in the Escrow Agent.Account; and
(a) D. be under no duty or obligation other than those herein specifically provided. The duties and responsibilities of the Escrow Agent shall be limited have no liability under, or duty to those expressly set forth in this Escrow Agreement inquire into, the terms and the Escrow Agent shall not be subject to, nor obligated to recognize, provisions of any other agreements between the Corporation, Underwriter and any Subscriber.
(b) agreement. The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to incur no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable whatsoever except for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, with counsel of its choice and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken, suffered or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with the written opinion and instructions advice of such counsel. The fees for consultation with such counsel Escrow Agent shall not be bound by any modification, amendment, termination, cancellation, rescission or supersession of this Agreement unless the same shall be paid in writing and unless it shall have given prior written consent thereto. In the event the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instruction, claims or demands from the parties hereto which, in its opinion, are in conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action other than to keep safely all funds held in the Escrow Account until it shall be directed otherwise in writing by all of the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is parties hereto or by a final judgment of a court of competent jurisdiction and time for identification purposes only, appeal has expired and its terms and conditions are not thereby incorporated herein.no appeal has been perfected
Appears in 1 contract
Duties of Escrow Agent. Acceptance by (a) Notwithstanding any provision of this Agreement to the contrary, the Escrow Agent of its is obligated only to perform the duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly specifically set forth in this Agreement, which shall be deemed purely ministerial in nature. Under no circumstances will the Escrow Agent be deemed to be a fiduciary to any party hereto or any other person under this Agreement. The Escrow Agent shall have no implied duties or obligations under the terms of this Agreement and the or otherwise. The Escrow Agent shall not be subject tocharged with or be deemed to have any knowledge or notice of any notice, nor obligated fact or circumstance not specifically set forth in this Agreement or furnished to recognizethe Escrow Agent in notices provided to the Escrow Agent in writing and strictly in accordance with the notice provisions of this Agreement. The Escrow Agent shall not be required to take notice of any agreement or understanding, including but not limited to the Merger Agreement among the parties hereto, other than this Agreement and shall have no duty or responsibility to take any other agreements between action pursuant to the Corporationterms thereof; provided, Underwriter and any Subscriberhowever, the Escrow Agent acknowledges that certain capitalized terms used herein are defined in the Merger Agreement. The Escrow Agent acknowledges that, as among the parties to the Merger Agreement, the Merger Agreement governs the indemnification obligations of the Sellers for which the Escrow Funds are a source of payment.
(b) The Escrow Agent shall be entitled to rely exclusively upon the written statements and instructions provided in accordance with this Agreement and may assume the genuineness of all signatures and documents and the authority of all signatories. The Escrow Agent shall have no liability except for its own gross negligence or willful misconduct in the performance of its duties hereunder and shall not have any liability for any action taken (or any failure to act) in good faith upon the advice of its independent legal counsel. Simultaneously with the execution of this Agreement, each of Parent and the Stockholders’ Representative shall deliver to the Escrow Agent are only such the authorized signatory forms attached as are herein specifically provided Exhibits A-1 and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereofA-2 hereto.
(c) The In the event there are any Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to Funds held by the Escrow Agent in accordance with five (5) years after the date of this Escrow Agreement. The Agreement that are subject to a complaint filed by either Parent or the Stockholders’ Representative, the Escrow Agent may rely and act upon any written noticedeposit such remaining Escrow Funds with the court where such complaint was filed for the court’s disposition, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be whereupon this Agreement and the Escrow Agent Agent’s duties and appointment shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdictionterminate.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify hold and hold safeguard the Escrow Agent harmless Funds from the date of this Agreement until the termination of this Agreement pursuant to Section 7 and against any shall treat such funds as escrow funds in accordance with the terms of this Agreement and all claims, losses, damages, liabilities shall hold and expenses, including reasonable attorneys' fees, which may be imposed upon dispose of the Escrow Agent or incurred by Funds only in accordance with the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementterms hereof.
(e) The Escrow Agent shall return to the Corporation any sums delivered to will identify in its books the Escrow Funds held in escrow under this Agreement from time to time and ensure that the Escrow Funds are held separate and distinct from other funds held by it. The Escrow Agent pursuant will keep complete and accurate records regarding the Escrow Funds and will provide any party to this Escrow Agreement for which with full details of the management and status of the Escrow Agent has not received release instructions pursuant to Section 4 hereofFunds within a reasonable time following receipt of a written request therefore, and as to which four years have passed since deliverybut no more frequently than monthly.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may Funds will not be counsel subject to the Corporation) in the event any right, lien or claim of any dispute kind in favor of the Escrow Agent or questions as to the construction in favor of any of its creditors. The Escrow Agent will notify each of Parent and the provisions hereof Stockholders’ Representative promptly in writing of any attempt by any person to assert any claim against any of the Escrow Funds and will not make any admission or its duties hereunder, and it shall incur no liability concession in acting in good faith in accordance with the written opinion and instructions respect of such counsel. The fees for consultation with such counsel shall be paid claim except to the extent authorized by Parent and the CorporationStockholders’ Representative.
(g) Reference The parties acknowledge that the Escrow Agent may, in this Escrow Agreement the course of providing services hereunder, collect or receive financial and other personal information about such parties and/or their representatives, as individuals, or about other individuals related to the Registration Statement is for identification purposes onlysubject matter hereof, and use such information to meet the Escrow Agent’s legal and regulatory requirements.
(h) THE ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
(i) No provision of this Agreement shall require the Escrow Agent to risk or advance its terms own funds or otherwise incur any financial liability or potential financial liability in the performance of its duties or the exercise of its rights hereunder.
(j) Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer all or substantially all of its corporate trust business and conditions are not thereby incorporated hereinassets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which the Escrow Agent is a party, shall be and become the successor escrow agent under this Agreement and shall have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution or filing of any instrument or paper or the performance of any further act.
(k) The Escrow Agent shall have no duties or responsibilities with respect to administering tax withholding, payments or reporting for persons receiving distributions, including those distributions relating to wages.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Providence Service Corp)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and responsibilities of the no duties shall be implied. Escrow Agent shall be have no liability under and no duty to take notice of or inquire as to the provisions of any agreement (including but not limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(bMerger Agreement) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do except to the extent that a court of competent jurisdiction determines that Escrow Agent’s gross negligence or refrain from doing in connection herewith, unless caused by its willful misconduct was the primary cause of any loss to Buyer or gross negligencethe Shareholders’ Representative. The Corporation Escrow Agent’s sole responsibility shall indemnify be for the safekeeping and hold disbursement of the Escrow Fund in accordance with the terms of this Agreement. Escrow Agent harmless from shall have no implied duties or obligations and against shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and all claimseffectiveness, losses, damages, liabilities but also as to the truth and expenses, including reasonable attorneys' feesaccuracy of any information contained therein, which may be imposed upon the Escrow Agent shall reasonably believe to be genuine and to have been signed or incurred presented by Buyer and/or the Shareholders’ Representative. In no event shall Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages (including, but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. Escrow Agent shall not be obligated to take any legal action or commence any proceeding in connection with its acceptance of the appointment as Escrow Agent hereunder Fund, any account in which Escrow Cash is deposited, this Agreement or the performance of its duties hereunderMerger Agreement, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation appear in, prosecute or defend any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The such legal action or proceeding. Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) selected by it in the event of any dispute or questions question as to the construction of any of the provisions hereof or of its duties hereunder, or relating to any dispute hereunder, and it shall incur no liability and shall be fully indemnified from any liability whatsoever in acting in good faith in accordance with the written opinion and instructions or advice of such counsel. The Buyer shall promptly pay, upon demand, the reasonable fees for consultation and expenses of any such counsel. Escrow Agent is authorized, in its sole discretion, to comply with orders issued or process entered by any court with respect to the Escrow Fund, without determination by Escrow Agent of such counsel court’s jurisdiction in the matter. If any portion of the Escrow Fund is at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be paid stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any such event, Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which it is advised by legal counsel selected by it is binding upon it without the Corporationneed for appeal or other action; and if Escrow Agent complies with any such order, writ, judgment or decree, it shall not be liable to any of Buyer or the Shareholders’ Representative or to any other person or entity by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by The duties of the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement entirely administrative and the Escrow Agent shall not be subject toliable to any third party as a result of any action or omission taken or made by it, nor obligated if taken in good faith, except for gross negligence or willful misconduct in performing its duties. In the event of disagreement or dispute between Kendxx xxx Seller with respect to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties disposition of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrowFund, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject promptly initiate an appropriate legal proceeding to no liability with respect obtain a judicial determination of the respective parties' rights to the form, execution or validity thereofEscrow Fund. If, in the opinion No rights are intended to be granted to any third party hereunder. Kendxx xxx Seller shall severally (each being responsible for fifty percent (50%) of the Escrow Agentindemnity account) indemnify, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then defend and hold harmless the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold reimburse the Escrow Agent harmless from and against for any and all claimsliability, losses, damages, liabilities costs and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent may suffer or incur by reason of its execution and performance of this Escrow Agreement. The Escrow Agent shall have no duties except those which are expressly set forth herein, and it shall not be bound by any notice of a claim, or demand with respect thereto, or any waiver, modification, amendment, termination or recision of this Escrow Agreement, unless in writing received by it and signed by Kendxx xxx/or Seller. In the event that the Escrow Agent shall find it necessary to consult with counsel of its own choosing in connection with this Escrow Agreement, the Escrow Agent shall not incur any liability for any action taken in good faith in accordance with such advice. Kendxx xxx Seller, jointly and severally, shall indemnify and hold harmless the Escrow Agent for any liability, loss, claim or damage incurred by the Escrow Agent in connection with its acceptance this Escrow except for any such liability, costs, expenses (including reasonable attorneys' fees), loss, claims or damage which is a result of Escrow Agent's own gross negligence or willful misconduct. This indemnification shall survive termination of this Escrow Agreement. Kendxx xxx Seller agree that Kendxx, xx the appointment as one hand, and Seller, collectively, on the other hand, shall each assume and pay fifty percent (50%) of all amounts due to Escrow Agent hereunder or the performance as a result of its duties hereunder, unless the this indemnification. Escrow Agent is determined not a party to, and is not bound by, any agreement which may be evidenced by, or arise out, the foregoing instruction, other than as expressly set forth herein. In the event that any of the terms and provisions of any other agreement (excluding any amendment to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to between any of the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereofparties hereto, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute conflict or questions as to the construction of are inconsistent with any of the provisions hereof or its duties hereunderof this Escrow Agreement, the terms and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions provisions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, shall govern and its terms and conditions are not thereby incorporated hereincontrol in all respects.
Appears in 1 contract
Duties of Escrow Agent. Acceptance The Escrow Agent shall perform the following duties on the dates described below, as defined in the Stock Purchase Agreement:
A. On the date of execution of this Escrow Agreement, the Escrow Agent shall accept into its Attorney Trust Account from the Buyer $100,000 towards the Purchase Price and the Debt Amount, which will deemed to be non- refundable in the event the Buyer refuses to close on the Closing date in violation of the Stock Purchase Agreement and Substitution of Debtor Agreement. Additionally, prior to the close of business on the seventh (7th) day following the date of execution of this Escrow Agreement, the Escrow Agent shall accept into its Attorney Trust Account from the Buyer the remaining $225,000 towards the Purchase Price and the Debt Amount. Upon the Escrow Agent's receipt of the aforementioned, the Escrow Agent shall acknowledge in writing the receipt thereof and shall hold such in accordance with the terms of this Escrow Agreement.
B. On the Closing date, the Escrow Agent shall accept from Xxxxxx the stock certificates representing the Common Stock along with their properly executed stock power.
C. On the Closing date, upon Xxxxxx'x and the Buyer's written satisfaction of all conditions of Closing, or upon the written waiver thereof, the Escrow Agent shall:
(a) deliver to Buyer and Buyer shall accept the stock certificates representing the Common Stock along with their properly executed stock power; and
(b) upon receipt by the Escrow Agent of its duties under this Escrow Agreement is subject Xxxxxx'x and/or Xxxxxx Trust's written instruction, deliver to Xxxxxx and/or Xxxxxx Trust, or their assigns, the following terms Purchase Price and conditionsDebt Amount, less $12,500 which all parties shall be delivered to this Escrow Agreement agree shall govern and control with respect to Xxxxx X. Xxxx, P.A. for fees.
D. Upon the rights, duties, liabilities and immunities performance of the Escrow Agent.
(a) The duties and responsibilities of described above, the Escrow Agent shall shall, without further action by any party, be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The released from all duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in naturehereunder. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be have no responsibility under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable Agreement except for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its express duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by (a) Escrow Agent shall not be under any duty to give the Escrow Fund held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) Escrow Agent shall not be liable, except for its own negligence, willful misconduct or violations of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties obligations pursuant to this Escrow Agreement agree shall govern and control and, except with respect to claims based upon such negligence, willful misconduct or violations of its obligations pursuant to this Escrow Agreement that are successfully asserted against Escrow Agent, the rightsother parties hereto shall jointly and severally indemnify and hold harmless Escrow Agent (and any successor Escrow Agent) from and against any and all losses, dutiesliabilities, liabilities claims, actions, damages and immunities expenses, including reasonable attorneys fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof and not inconsistent with the instructions of Seller and/or Purchaser, as the case may be, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or violations of its obligations pursuant to this Escrow Agreement) in the investment or reinvestment of the Escrow Fund, or any loss of interest incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(ad) The duties Escrow Agent may act pursuant to the advice of its counsel with respect to any matter relating to this Agreement and responsibilities of shall not be liable for any action taken or omitted by it in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the Escrow Agent Fund deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from this Escrow Fund shall be limited subject to those expressly set forth withholding regulations then in force with respect to United States taxes. The parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or non-resident alien certifications. This Section 4.(e) and Section 4.(b) shall survive notwithstanding any termination of this Escrow Agreement and or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(g) Escrow Agent shall not be subject to, nor obligated called upon to recognize, advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other agreements between the Corporation, Underwriter and any Subscriberproperty deposited hereunder.
(bh) The duties of Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent are only such as are herein specifically provided jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and such duties are purely ministerial from any and all further obligations arising in natureconnection with this Escrow Agreement. The resignation of Escrow Agent will take effect on the earlier of (i) the appointment of successor (including a court of competent jurisdiction) or (ii) the day which is thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's primary duty sole responsibility after that time shall be to keep custody of retain and safeguard the Escrow Fund during until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the period other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(i) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received a final non-appealable order of a court of competent jurisdiction directing delivery of the escrowEscrow Fund, to invest monies held in which event Escrow Agent shall disburse the Escrow Fund in accordance with Section 2 hereof such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and to make disbursements from the non-appealable. Escrow Fund in accordance with Section 4 hereofAgent shall act on such court order and legal opinion without further question.
(cj) The Purchaser and Seller shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of TWELVE HUNDRED AND NO/100 DOLLARS ($1,200.00) at the time of execution of this Escrow Agreement, and annual maintenance fees thereafter, and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). Any such compensation and reimbursement to which Escrow Agent is entitled shall be borne fifty percent (50%) by Purchaser and fifty percent (50%) by Seller. Any fees or expenses of Escrow Agent or its counsel that are not paid as provided for herein may be taken from any property held by Escrow Agent hereunder.
(k) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be under no obligations in respect of issued by the Escrow Fund other than to faithfully follow the instructions herein contained parties hereto or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto, which shall not be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the unreasonably withheld.
(l) The other parties hereto authorize Escrow Agent, for any securities held hereunder, to use the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement services of any such controversy by final adjudication of a court or courts of proper jurisdictionUnited States central securities depository it reasonably deems appropriate.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance (A) The Escrow Agent shall be entitled to rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without being required to investigate the validity, accuracy or content thereof nor shall the Escrow Agent be responsible for the validity or sufficiency of this Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditionsbased on such advice, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated liable to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in natureanyone. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall not be under no obligations required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in respect of a manner reasonably satisfactory to it.
(B) In the Escrow Fund other than to faithfully follow the instructions herein contained event conflicting demands are made or delivered to conflicting notices are served upon the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the formEscrow Shares, execution the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or validity thereofboth of the following: (i) resign as Escrow Agent so a successor can be appointed pursuant to clause (d) of this Section 6, or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. IfIn the event such interpleader suit is brought, in the opinion Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and Parent will pay the Escrow Agent all costs, expenses and reasonable attorneys' fees expended or incurred by the Escrow Agent pursuant to the exercise of the Escrow Agent's rights under this Section 6(b) (such costs, fees and expenses will be treated as extraordinary fees and expenses for the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement purposes of any such controversy by final adjudication of a court or courts of proper jurisdictionSection 5 hereof).
(dC) The Escrow Agent shall not be liable liable, except for any error of judgment its or for any act done its representatives, own gross negligence or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, with respect to claims not based upon such gross negligence or gross negligence. The Corporation shall willful misconduct that are successfully asserted against the Escrow Agent, Parent and the Company Stockholders shall, jointly and severally, indemnify and hold harmless the Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent arising out of and in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(eD) The Escrow Agent shall return to the Corporation any sums delivered to have no interest in the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereofShares, but is serving as escrow holder only and as to which four years have passed since deliveryhaving only possession thereof.
(fE) The Escrow Agent may consult withresign as Escrow Agent at any time and for any reason whatsoever. In the event the Escrow Agent desires to resign as Escrow Agent under this Agreement, the Escrow Agent shall deliver a notice to Parent and the Company Stockholders' Representatives stating the date upon which such resignation shall be effective; PROVIDED, HOWEVER, that any such resignation shall not be effective until at least the 30th day after Parent and the Company Stockholders' Representatives receive such notice. Upon the receipt of any such notice from the Escrow Agent, Parent may appoint a successor escrow agent without the consent of the Company Stockholders' Representatives so long as such successor is a bank or trust company with assets of at least $500 million, and obtain advice frommay appoint any other successor escrow agent with the consent of the Company Stockholders' Representatives, legal counsel (which may consent shall not be counsel unreasonably withheld. In the case of the appointment of any successor escrow agent requiring the consent of the Company Stockholders' Representatives as set forth in the preceding sentence, Parent and the Company Stockholders' Representatives shall deliver a written notice to the Corporation) in Escrow Agent designating the event of any dispute or questions as to successor escrow agent. Upon the construction of any effectiveness of the provisions hereof or its duties resignation of the Escrow Agent, the Escrow Agent shall deliver the Escrow Shares to any successor escrow agent properly designated hereunder, and it shall incur no liability in acting in good faith in accordance with whereupon the written opinion and instructions of such counsel. The fees for consultation with such counsel Escrow Agent shall be paid by discharged from any and all further obligations arising hereunder. If upon the Corporationeffective date of resignation of the Escrow Agent a successor escrow agent has not been duly designated, Escrow Agent may petition any court of competent jurisdiction to name a successor escrow agent and the Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Shares until receipt of a designation of successor escrow agent or a final nonappealable order of a court of competent jurisdiction.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly obligated only for the performance of such duties as are specifically set forth herein, and as set forth in any additional written escrow instructions which Escrow Agent may receive after the date of this Escrow Agreement which are signed by Buyer and Shareholders, and may rely and shall be protected in relying or refraining from acting on any instru-ment reasonably believed to be genuine and to have been signed or presented by the proper party or parties.
(b) Escrow Agent shall not be subject toliable, nor obligated to recognizeexcept for its own gross negligence or willful misconduct and, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability except with respect to the form, execution claims based upon such gross negligence or validity thereof. If, in the opinion of the willful misconduct that are successfully asserted against Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold other parties hereto shall jointly and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent arising out of and in connection with its acceptance this Agreement.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the appointment as service thereof. Escrow Agent hereunder may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the performance of its duties hereunder, unless person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is determined an entity other than a natural person has full power and authority to have committed an intentional wrongful instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(d) Escrow Agent may act or pursuant to have been grossly negligent the advice of counsel with respect to its duties under any matter relating to this Escrow AgreementAgreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice.
(e) Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(f) Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(g) Escrow Agent (and any successor Escrow Agent) may at any time resign by giving at least thirty (30) days prior written notice to the parties and by delivering the Escrow Account to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Account until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction. Any corporation into which the Escrow Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Escrow Agent shall be a party, or any corporation succeeding to the corporate trust business of the Escrow Agent shall be the successor Escrow Agent hereunder, without the execution or filing of any paper or any paper or any further action on the part of any of the parties hereto.
(h) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Account or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Account until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Account or (ii) a written agreement executed by Buyer and the Shareholders directing delivery of the Escrow Account, in which event Escrow Agent shall disburse the Escrow Account in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall act on such court order and legal opinion without further question.
(i) Buyer shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of $2,000.00 at the time of execution of this Agreement and $2,000.00 annually thereafter and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). Notwithstanding anything in this Agreement to the contrary, the Escrow Agent shall be entitled to retain from any disbursements requested hereunder any outstanding fees and/or expenses due to it hereunder. The Escrow Agent shall return to is hereby granted a first lien on the Corporation any sums delivered Escrow Amount for all indebtedness that may become owing to the Escrow Agent pursuant to this Agreement. In the event such fees and/or expenses are not paid to Escrow Agreement for which Agent within thirty (30) days after Escrow Agent makes a demand in writing therefor, the Escrow Agent has not received release instructions pursuant to Section 4 hereofmay charge such fees and/or expenses against the Escrow Amount, and as to which four years have passed since deliveryeither against the corpus of the Escrow Amount or interest earned thereon.
(fj) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
(k) The Escrow Fund shall be invested by the Escrow Agent may consult with(x) in securities which at the date of such investments are direct obligations of, or obligations fully guaranteed by, the United States or any agency of the United States or bank certificates of deposit of a United States bank which is an affiliate of the Federal Reserve System and obtain advice fromhas a net worth of at least $100,000,000, legal counsel in each case with maturities not in excess of thirty (which may not be counsel 30) days, or (y) in such securities as Buyer and the Shareholders shall together designate in writing to the Corporation) Escrow Agent. Any interest received with respect to such investments of the Escrow Fund shall be added to and shall constitute part of the Escrow Fund and shall be reported by the Shareholders for income tax purposes. The Escrow Agent shall have the right to sell securities in order to make payments (and in the event case of any dispute or questions as to the construction bank certificates of any of the provisions hereof or its duties hereunderdeposit, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel payments shall be paid by the Corporationupon first maturity of funds) and shall not be liable for any loss due to fluctuation in market value or penalties due to early redemption.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Escrow Agreement (STM Wireless Inc)
Duties of Escrow Agent. Acceptance (a) The Escrow Agent shall hold the Deposit in an interest-bearing federally insured account and shall pay the Deposit to the party entitled thereto in accordance with the terms of this Agreement.
(b) The acceptance by the Escrow Agent of its duties as such under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement hereby agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent:
(i) The Escrow Agent acts hereunder as a depositary only, and is not responsible or liable in any manner whatever for the sufficiency of any amounts deposited with it.
(aii) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act liable for acting upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper instrument or document which it the Escrow Agent in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdictionbe.
(diii) The Escrow Agent shall not be liable for any error of judgment in judgment, or for any act done or step taken or omitted by it, it in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by except its own bad faith, gross negligence or willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementmisconduct.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(fiv) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the written opinion and instructions advice of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(gv) Reference In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it to be genuine and signed by either of the other parties hereto or their successors.
(vi) The Escrow Agent may assume that any person purporting to give any notice of instructions in this accordance with the provisions hereof has been duly authorized to do so.
(vii) The Sellers and the Purchaser each hereby release the Escrow Agreement Agent from any act done or omitted to be done by the Escrow Agent in good faith in the performance of its duties hereunder.
(c) The Sellers and the Purchaser may remove the Escrow Agent at any time upon not less than five (5) days notice to the Registration Statement Escrow Agent; in such case, the Sellers, by notice to the Purchaser, shall appoint a successor Escrow Agent, reasonably satisfactory to the Purchaser, which shall accept such appointment and agree in writing to be bound by the terms of this Agreement. In the event no successor Escrow Agent is appointed and acting hereunder within five (5) days after resignation by the Escrow Agent or there is a dispute among the parties with respect to payment of the Deposit, the Escrow Agent may deliver the Deposit into a court of competent jurisdiction. Upon delivery of the Deposit to a successor agent or court of competent jurisdiction, the Escrow Agent shall be released and discharged from all further obligations hereunder.
(d) The Escrow Agent agrees to serve without compensation for identification purposes onlyits services; provided, however, that the Purchaser and the Sellers hereby agree to reimburse, or to advance to, the Escrow Agent all reasonable expenses of the Escrow Agent incurred in the performance of its terms and conditions are not thereby incorporated hereinduties hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (FelCor Lodging Trust Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent is authorized and agrees by acceptance of the Xxxxxxx Money to hold and deliver the same or the proceeds thereof in accordance with the terms hereof. In the event of doubt as to its duties under liabilities or duties, Escrow Agent may, in its sole discretion and any other provision of this Escrow Agreement is subject to the following terms and conditionscontrary notwithstanding, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities continue to hold the Xxxxxxx Money or the proceeds thereof until the parties mutually agree to the disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or (b) deliver the Deposit or proceeds thereof to the Clerk of the Circuit Court for the county in which the Property is located, and, upon notifying all parties concerned of such action, any liability on the part of Escrow Agent shall fully terminate except to the extent of accounting for any monies or documents previously delivered out of escrow. In the event of any suit wherein Escrow Agent is made a party by virtue of acting as escrow agent, or in the event of any suit initiated by or against Escrow Agent wherein Escrow Agent interpleads the Xxxxxxx Money, Escrow Agent shall be limited entitled to those expressly set forth recover a reasonable attorneys’ fee and costs incurred in this Escrow Agreement negotiation, at trial and the upon appeal, said fees and costs to be charged and assessed as court costs in favor of Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between and immediately paid by the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in naturenon- prevailing party. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The parties agree that Escrow Agent shall not be liable to anyone for misdelivery to Purchaser or Seller of monies or any error document held in escrow unless such misdelivery shall be due to willful breach of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct this Agreement or gross negligencenegligence on the part of Escrow Agent. The Corporation shall indemnify Purchaser and Seller each agrees to hold the Escrow Agent harmless from and against any and all claimsloss, losses, damages, liabilities and expensescost or expense, including reasonable attorneys' ’ fees, which may be imposed upon the resulting from Escrow Agent or incurred by the Escrow Agent in connection Agent’s compliance with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties obligations hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The . Escrow Agent shall return be liable to provide an accounting upon request by either party. Notwithstanding its role as Escrow Agent, the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The parties agree that Escrow Agent may consult with, and obtain advice from, legal act as Seller’s counsel (which may not be counsel in all matters pertaining to the Corporation) in the event negotiation, preparation and enforcement of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationthis Agreement.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by In addition to the Duties set forth in Article VIII, the Duties of the Escrow Agent of its duties under this Escrow Agreement is subject to shall include the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.following:
(a) The duties Escrow Agent shall hold and responsibilities safeguard the Escrow Shares, Escrow Cash and Expense Fund during the Escrow Period, shall treat such Escrow Fund and Expense Fund as a trust fund in accordance with the terms of this Agreement and Article VIII and not as the property of Parent, and shall hold and dispose of the Escrow Agent shall be limited to those expressly set forth Shares, Escrow Cash and Expense Fund only in this Escrow Agreement and accordance with the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriberterms hereof.
(b) The duties of Escrow Shares shall be voted by the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period on behalf of the escrow, to invest monies held in the Escrow Fund Shareholders in accordance with Section 2 hereof and to make disbursements the instructions received by the Escrow Agent from the Shareholders' Agent. In the absence of such instructions, the Escrow Fund in accordance with Section 4 hereofAgent need not vote such shares.
(c) The Promptly following the Escrow Termination Date, but not later than five (5) business days following termination, the Escrow Agent shall be under no obligations in respect deliver to (i) each Shareholder that amount of Escrow Cash not required, when combined with the Escrow Fund other than Shares retained pursuant to faithfully follow the instructions herein contained or clause (ii), to satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to the Escrow Agent prior to the Escrow Termination Date with respect to facts and circumstances existing prior to the Escrow Termination Date, and (ii) the Parent's stock transfer agent (initially American Stock Transfer & Trust Company), for delivery to the Shareholders, the proper number of Escrow Shares not required, when combined with the cash retained pursuant to clause (i), to satisfy any unsatisfied claims specified in accordance with this Escrow Agreement. The any Officer's Certificate theretofore delivered to the Escrow Agent may rely prior to the Escrow Termination Date with respect to facts and act upon any written noticecircumstances existing prior to the Escrow Termination Date. As soon as all such claims for which Escrow Cash and Escrow Shares have been retained at the Escrow Termination Date have been resolved, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject deliver to no liability with respect to the form, execution or validity thereof. If, in the opinion such Shareholders all of the Escrow Agent, the instructions it receives are ambiguous, uncertain or Cash and Escrow Shares in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending and not required to satisfy such claims and expenses. Each Shareholder shall receive a pro rata amount of the settlement Escrow Cash and Escrow Shares available for distribution based on the applicable percentage set forth opposite the name of any each such controversy Shareholder on Annex B, as calculated by final adjudication of a court or courts of proper jurisdictionthe Shareholders' Agent.
(d) The Promptly following the Escrow Termination Date, but not later than five (5) business days following termination, the Escrow Agent shall not be liable for deliver to the Parent any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance portion of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow AgreementExpense Fund remaining.
(e) The Escrow Agent shall return to invest and reinvest the Corporation any sums delivered Escrow Cash and Expense Fund in the triple "A" rated First American Prime Obligations Money Fund (Class A). Each of Parent and Shareholders' Agent, on behalf of the Shareholders, hereby confirms receipt of the First American Funds prospectus, and acknowledges that the fund investment advisor and custodian are subsidiaries of U.S. Bancorp, and investment in the fund includes approval of the fund's fees and expenses as detailed in the prospectus, including advisory and custodial fees and shareholder service expenses (which may be so called 12b-1 shareholder service fees), which fees and expenses are paid to the Escrow Agent pursuant to this Agent, U.S. Bank National Association or subsidiaries of U.S. Bancorp. The shares of the funds are not deposits or obligations of, or guaranteed by, any bank, including U.S. Bank National Association, U.S. Bank Trust National Association or any of their affiliates, nor are they insured by the Federal Deposit Insurance Commission, the Federal Reserve Board or any other agency. The investment in the fund involves investment risk, including possible loss of principal. A statement of citizenship will be provided if requested by Escrow Agreement for which the Agent. The Escrow Agent has shall not received release instructions pursuant to Section 4 hereofbe liable for losses, and as to which four years have passed since deliverypenalties or charges incurred upon any sale or purchase of any such investment.
(f) The Earnings on the Escrow Agent may consult with, Cash shall become part of the Escrow Cash and obtain advice from, legal counsel (which may not Escrow Fund. All income earned on the Escrow Fund shall be counsel allocable to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith Shareholders in accordance with the written opinion applicable percentage set forth opposite their names on Annex B. For tax purposes, the Escrow Cash shall be deemed property of the Shareholders and instructions all earnings shall be the income of such counselthe Shareholders. The fees for consultation Parent and the Shareholders shall file Tax Returns and the Escrow Agent shall file a Form 1099 consistent with such counsel shall be paid by the Corporationtreatment.
(g) Reference in this Escrow Agreement to Earnings on the Registration Statement is for identification purposes onlyExpense Fund shall not become part of the Expense Fund, and its terms shall be distributed to Parent when received by Escrow Agent. For tax purposes, all earnings shall be the income of Parent. Parent shall file Tax Returns and conditions are not thereby incorporated hereinthe Escrow Agent shall file a Form 1099 consistent with such treatment.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of It is agreed that the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided provided, and that such duties are purely ministerial in nature. The nature and no implied covenants shall be read into this Agreement against the Escrow Agent's . Escrow Agent’s primary duty shall be to keep custody of and safeguard the Escrow Fund Assets during the period of the escrow, Escrow Account and to invest monies held distribute the Escrow Assets in the Escrow Fund Account in accordance with Section 2 hereof the provisions in Sections 5, 6 and to make disbursements from the Escrow Fund in accordance with Section 4 7 hereof.
(c) The . Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to incur no liability with respect to the formwhatsoever, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable except for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal with counsel (which may not be counsel to the CorporationIndemnified Party or to Majority Stockholders’ Representative) and shall be fully protected in the event of taking any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting action in good faith in accordance with the written opinion and or instructions of such counsel. Escrow Agent shall not be required to institute legal proceedings of any kind; and the Indemnified Party and Majority Stockholders’ Representative, on behalf of each Indemnifying Party, jointly and severally, agree to indemnify and hold Escrow Agent harmless, in respect of any Claim, suit or proceeding, whether with or without basis in law or in fact, based on this Agreement or any act of Escrow Agent hereunder brought against it by any person except as provided in this Section 8(a). The fees for consultation with such counsel costs and expenses of enforcing this right of indemnification shall also be paid by the CorporationIndemnified Party and Majority Stockholders’ Representative, on behalf of each Indemnifying Party. This right of indemnification shall survive the termination of this Agreement and the removal or resignation of the Escrow Agent.
(gb) Reference in this Escrow Agreement to the Registration Statement is for identification purposes onlyAgent may rely upon, and its terms shall be protected in acting or refraining in acting based upon, any written notice, instruction or request furnished to it hereunder and conditions are not thereby incorporated hereinreasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.
(c) In no event shall Escrow Agent be liable to any party for any special, indirect or consequential loss or damage of any kind whatsoever, even if the Escrow Agent has been previously advised of the possibilities of such loss or damage.
Appears in 1 contract
Duties of Escrow Agent. Acceptance (a) The Escrow Agent shall be entitled to rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without being required to investigate the validity, accuracy or content thereof nor shall the Escrow Agent be responsible for the validity or sufficiency of this Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditionsbased on such advice, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject toliable to anyone. In connection with any sales of Shares pursuant to Section 1(f) of this Agreement, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall issue or cause to be subject issued a Form 1099 to no liability with respect to each beneficial owner of Shares properly reflecting such beneficial owner's pro rata portion of all proceeds from the form, execution or validity thereofsale of Shares. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable required to take any action hereunder involving any expense unless the payment of such expense is made or provided for any error of judgment in a manner reasonably satisfactory to it.
(b) In the event conflicting demands are made or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed conflicting notices are served upon the Escrow Agent with respect to the Escrow Cash, the Escrow Shares, the Adjustment Cash or the Adjustment Shares, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign as Escrow Agent so a successor can be appointed pursuant to clause (e) of this Section 8, or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and Parent will pay the Escrow Agent all costs, expenses and reasonable attorneys' fees expended or incurred by the Escrow Agent in connection with its acceptance pursuant to the exercise of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties Agent's rights under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.8(b)
Appears in 1 contract
Samples: Escrow Agreement (Titan Corp)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth Except as provided in this Escrow Agreement and Section 2, the Escrow Agent shall not be subject to, nor required to invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest. The Escrow Agent shall have no implied duties or obligations and shall be required to perform only such duties as are expressly set forth in this Agreement. The Escrow Agent shall not be required to take notice of the Purchase Agreement and shall have no duty or responsibility to take any action pursuant to the terms thereof. The Escrow Agent shall not be obligated to recognizetake any legal action or to commence any proceedings in connection with the Escrow Fund or this Agreement, or to appear in, prosecute or defend in any other agreements between the Corporation, Underwriter and any Subscribersuch legal action or proceedings.
(b) The duties Escrow Agent shall not be liable, except for its own gross negligence, recklessness or willful misconduct and, except with respect to claims based upon such gross negligence, recklessness or willful misconduct that are asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor to the Escrow Agent) and each of the Escrow Agent’s officers, directors, agents and employees from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable legal fees and disbursements of one outside counsel (but not with respect to costs and expenses allocated to its internal counsel), directly or indirectly arising out of and in connection with this Agreement or the undertaking of the Escrow Agent are only such to serve as are herein specifically provided and such duties are purely ministerial in naturethe Escrow Agent hereunder. The right to the indemnity afforded hereby shall survive the termination of this Agreement and any resignation or removal of the Escrow Agent's primary duty . Without limiting the foregoing, the Escrow Agent shall in no event be to keep custody liable in connection with its investment or reinvestment of and safeguard any of the Escrow Fund during the period of the escrow, to invest monies held by it hereunder in the Escrow Fund good faith in accordance with Section 2 hereof and to make disbursements the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, recklessness or willful misconduct) in the investment or reinvestment of the Escrow Fund in accordance with Section 4 hereofFund, or any loss of interest incident to any such delays. In no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits, even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(c) The Escrow Agent shall be under no obligations in respect entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof, unless the Escrow Fund other than Agent has actual knowledge of any such lack of authenticity, correctness, propriety or validity. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to faithfully follow be genuine and may assume that the instructions herein contained person purporting to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so unless the Escrow Agent has actual knowledge of the lack of authority. The Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity has full power and authority to instruct the Escrow Agent on behalf of that party unless written notice to the contrary is delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and unless the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion has actual knowledge of the Escrow Agent, the instructions it receives are ambiguous, uncertain lack of power or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdictionauthority.
(d) The Escrow Agent may act pursuant to the advice of legal counsel with respect to any matter relating to this Agreement and shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligenceaccordance with such advice. The Corporation Escrow Agent shall indemnify and hold not have any interest in the Escrow Fund deposited hereunder and is serving as escrow holder only and having only possession thereof. The Escrow Agent harmless from shall prepare and against any provide to the Sellers’ Representative and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Buyer a monthly information statement of the Escrow Agent Consideration no later than the last calendar day of any given month in respect of the immediately preceding full calendar month (the “Monthly Earnings Statement”). This Section 5(d), Section 5(b) and Section 5(h) shall survive notwithstanding any termination of this Agreement or incurred by the resignation or removal of the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow AgreementAgent.
(e) The Escrow Agent shall return makes no representation as to the Corporation validity, value, genuineness or the collectability of any sums security or other document or instrument held by or delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryit.
(f) The Escrow Agent (and any successor to the Escrow Agent) may consult withresign at any time upon thirty (30) days’ prior written notice to the Sellers’ Representative and the Buyer, and obtain advice from, legal counsel may be removed by the mutual consent of the Sellers’ Representative and the Buyer upon thirty (which may not be counsel 30) days’ prior written notice to the CorporationEscrow Agent. Prior to the effective date of the resignation or removal of the Escrow Agent, the Sellers’ Representative and the Buyer shall jointly appoint a successor escrow agent, to hold the Escrow Fund, and any such successor escrow agent shall execute and deliver to the predecessor escrow agent an instrument accepting such appointment, upon which such successor agent shall, without further act, become vested with all of the rights, powers and duties of the predecessor escrow agent as if originally named herein. If no successor escrow agent is appointed prior to the effective date of the termination or resignation of the Escrow Agent, the Escrow Agent shall first, place all of the Escrow Fund at the disposal of a court and petition the court to act as the successor escrow agent or to appoint another entity to act as the successor escrow agent and second, if the court does not agree to act as successor agent or fails to appoint another entity to act as a successor escrow agent, deposit all of the Escrow Fund into the registry of any court of competent jurisdiction and notify the Sellers’ Representative and the Buyer in writing of such deposit. In the event that the Escrow Agent makes a deposit of the Escrow Fund into the registry of a court in the manner specified in the preceding sentence, the Escrow Agent shall thereupon be discharged from all further duties as the escrow agent hereunder.
(g) in In the event of any dispute disagreement between the Buyer and the Sellers’ Representative resulting in conflicting claims or questions demands being made in connection with the Escrow Fund or in the event that the Escrow Agent is in reasonable doubt as to what action it should take hereunder, the construction of any Escrow Agent shall be entitled to retain the Escrow Fund until the Escrow Agent shall have received (i) a final and non-appealable judgment resolving the applicable claim or directing delivery of the provisions hereof Escrow Fund or its duties hereunder(ii) joint written instructions executed by the Buyer and the Sellers’ Representative directing delivery of the Escrow Fund, in which event the Escrow Agent shall disburse the Escrow Fund in accordance with such final and it non-appealable judgment, decision, award or written instructions. The Escrow Agent shall incur no liability act on such final and non-appealable judgment, decision, award or written instructions without further questions.
(h) The Escrow Agent shall be paid compensation (as payment in acting in good faith full) for the services to be rendered by the Escrow Agent hereunder in accordance with the terms of Exhibit B attached hereto, the terms of which are incorporated herein by reference, and shall be reimbursed promptly upon receipt of a written opinion invoice from the Escrow Agent for all reasonable out-of-pocket expenses, disbursements and instructions advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of one outside counsel, but not any fees or expenses allocated to its internal counsel). Any such counsel. The fees for consultation with such counsel compensation and reimbursement to which the Escrow Agent is entitled shall be paid by the CorporationBuyer; provided, that, solely as between the Sellers’ Representative and the Buyer, the Sellers’ Representative will reimburse the Buyer, within ten (10) business days after payment, for fifty percent (50%) of such payments.
(gi) Reference In connection with any funds transfer, the Escrow Agent may rely solely upon any account numbers or similar identifying number provided in this accordance herewith to identify (A) the beneficiary, (B) the beneficiary’s bank, or (C) an order executed by such party using any such identifying number, even where its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary’s bank, or an intermediary bank designated. The Escrow Agreement Agent shall have no liability with respect to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated hereintransfer or distribution of any funds effected by the Escrow Agent pursuant to wiring or transfer instructions provided to the Escrow Agent by any party to this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Prestige Brands Holdings, Inc.)
Duties of Escrow Agent. Acceptance by the Except as provided in this Agreement and except for Escrow Agent's willful misconduct or gross negligence, Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control have no liability or obligation with respect to the rightsEscrow Account. Escrow Agent's sole responsibility shall be for the safekeeping, duties, liabilities and immunities disbursement of the Escrow Agent.
(a) The duties Account in accordance with the terms of this Agreement. Although right to ownership of shares will transfer per the terms of this Agreement, any or all "physical" transference or disbursement of Promotional Shares will be made under the conditions and responsibilities terms of the Promotional Share Escrow Agreement drafted per the request of the Arkansas Securities Division. Escrow Agent shall have no implied duties or obligations and shall not be limited to those expressly charged with knowledge or notice of any fact or circumstance not specifically set forth herein. Escrow Agent may rely upon any instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by the person or parties purporting to sign the same and to conform to the provisions of this Agreement. In no event shall Escrow Agreement and the Agent be liable for incidental, indirect, special, consequential or punitive damages. Escrow Agent shall not be subject to, nor obligated to recognize, take any other agreements between the Corporation, Underwriter and legal action or commence any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent proceeding in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act Account, or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation appear in, prosecute or defend any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The such legal action or proceedings. Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) selected by it in the event of any dispute or questions question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, and it shall incur no liability and shall be fully protected from any liability whatsoever in acting in good faith in accordance with the written opinion and instructions or instruction of such counsel. The Debtor shall promptly pay, upon demand, the reasonable fees for consultation with and expenses of any such counsel shall be paid by the Corporationcounsel.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Loan Agreement (Cyberlux Corp)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder.
(b) The duties of Escrow Agent and its directors, officers and employees shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, QuadraMed shall and hereby agrees to indemnify and hold harmless the Escrow Agent are only such as are herein specifically provided (and such duties are purely ministerial in nature. The any successor the Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's primary duty shall be to keep custody fees and disbursements, arising out of and safeguard in connection with this Agreement. In no event shall the Escrow Fund during the period of the escrowAgent be liable for indirect, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereofpunitive, special or consequential damages.
(c) The Escrow Agent shall be under no obligations entitled to rely upon any order, judgment, certification, demand, notice, instruction (including wire transfer instructions, whether set forth herein or set forth in respect a separate written instrument), instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreementservice thereof. The Escrow Agent may rely and act in reliance upon any written notice, instruction, direction, request, waiver, consent, receipt instrument or other paper or document which signature believed by it in good faith believes to be genuine and what it purports may assume that the person purporting to be give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct the Escrow Agent shall be subject to no liability with respect on behalf of that party unless written notice to the form, execution or validity thereof. If, in the opinion of contrary is delivered to the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent may act pursuant to the advice of counsel, including in-house counsel, with respect to any matter relating to this Agreement and shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do in accordance with such advice.
(e) The Escrow Agent does not have any interest in the Escrow Fund deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide the Escrow Agent at the signing of this Agreement with appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or refrain Form W-8 for non-resident alien certifications. Section 5(b) and this Section 5(e) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent. The parties hereto understand that, in the event their tax identification numbers are not certified to the Escrow Agent, the Internal Revenue Code, as amended from doing time to time, may require withholding of a portion of any interest or other income earned on the investment of the Escrow Fund.
(f) The Escrow Agent makes no representation as to and shall have no liability for the validity, marketability, liquidity, value, genuineness or the collectability or title to of any security or other document or instrument held by or delivered to it.
(g) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) The Escrow Agent (and any successor the Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor the Escrow Agent jointly designated by the other parties hereto in writing, or to a court of competent jurisdiction pursuant to Section 14 below, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection herewith, unless caused by its willful misconduct or gross negligencewith this Agreement. The Corporation resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor or (ii) the day which is thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent may apply to a court of competent jurisdiction for appointment of a successor escrow agent and the Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of (i) a designation of a successor Escrow Agent, (ii) a joint written disposition instruction by the other parties hereto, (iii) a final non-appealable order of a court of competent jurisdiction or (iv) the deposit of the Escrow Fund with such court of competent jurisdiction.
(i) In the event of any disagreement between the other parties hereto resulting in adverse Claims or demands being made in connection with the Escrow Fund, or in the event that the Escrow Agent is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Fund without liability to anyone until the Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction pursuant to Section 14 below directing delivery of the Escrow Fund or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, in which event the Escrow Agent shall disburse the Escrow Fund in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for the presenting party to the effect that the order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question. The Escrow Agent may, but shall be under no duty whatsoever to, institute or defend any legal proceedings which relate to the Escrow Fund.
(j) QuadraMed shall pay the Escrow Agent compensation for the services to be rendered by the Escrow Agent hereunder in the amount of $3,500 per year (for any year or part of a year), such fee for the first year to be payable in full in advance at the time of execution of this Agreement and thereafter to be payable each year in advance as and when billed by the Escrow Agent (such annual fee to be subject to reasonable change annually and upon advance written notice), provided that reasonable additional charges may be charged for extraordinary services in the event of a dispute (to be determined by appraisal); and QuadraMed agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). The Escrow Agent shall be entitled to reimbursement on demand to QuadraMed for all reasonable legal fees and expenses incurred in connection with the preparation and administration of this Agreement or the escrow created hereby which are in excess of its compensation for normal services hereunder, including, without limitation, payment of any reasonable legal fees and expenses incurred by the Escrow Agent in connection with resolution of any Claim by any party hereunder.
(k) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mention the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto.
(l) QuadraMed and the Stockholders, severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of the Escrow Fund under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which other expenses that may be imposed upon the Escrow Agent or incurred by assessed against the Escrow Agent in any such payment or other activities under this Agreement. QuadraMed and the Stockholders undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certificates and governmental reporting in connection with its acceptance of the appointment acting as Escrow Agent hereunder or the performance of its duties hereunder, unless under this Agreement. QuadraMed agrees to indemnify and hold the Escrow Agent is determined harmless from any liability on account of taxes, assessments or other governmental charges, including, without limitation, the withholding or deduction or the failure to have committed an intentional wrongful act withhold or deduct the same, and any liability for failure to obtain proper certifications or to have been grossly negligent properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with respect to its duties under or which arises out of this Escrow Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties. The foregoing indemnifications shall survive the termination of this Agreement.
(em) The Escrow Agent shall return to have no more or less responsibility or liability on account of any action or omission of any book-entry depository or subescrow agent employed by the Corporation Escrow Agent than any sums delivered such book-entry depository or subescrow agent has to the Escrow Agent pursuant Agent, except to this the extent that such action or omission of any book-entry depository or subescrow agent was caused by the Escrow Agreement for which Agent's own gross negligence, bad faith or willful misconduct.
(n) Any funds to be paid to or by the Escrow Agent has not received release instructions hereunder shall be sent by wire transfer or such method of payment and pursuant to Section 4 hereofsuch wire transfer or other instructions as are given in advance and in writing to or by the Escrow Agent, and as to which four years have passed since delivery.
(f) The Escrow Agent the case may consult withbe, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the CorporationSection 8 below.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by a) Escrow Agents shall not be under any duty to give the Escrow Agent Property held by them hereunder any greater degree of its duties under care than they give their own similar property and shall not be required to invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
b) Escrow Agreement is subject to the following terms and conditionsAgents shall not be liable, which all parties to this Escrow Agreement agree shall govern and control except for their own gross negligence or willful misconduct and, except with respect to the rights, duties, liabilities and immunities of the claims based upon such gross negligence or willful misconduct that are successfully asserted against Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow AgentAgents, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation Depositor shall indemnify and hold the harmless Escrow Agent harmless Agents (and any successor Escrow Agents) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agents shall in no event be liable in connection with their investment or reinvestment of any cash held by them hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its acceptance gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Agent Property, or any loss of interest incident to any such delays.
c) Escrow Agents shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to them hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, any fact stated therein or the propriety or validity of the service thereof. Escrow Agents may act in reliance upon any instrument or signature believed by them to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agents may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agents on behalf of that party unless written notice to the contrary is delivered to Escrow Agent is determined Agents.
d) Escrow Agents may act pursuant to have committed an intentional wrongful act or to have been grossly negligent the advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting omitted by them in good faith in accordance with such advice.
e) Escrow Agents do not have any interest in the written opinion Escrow Property deposited hereunder but are serving as escrow holders only and instructions having only possession thereof. Any payments of income from this Escrow Property shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide Escrow Agents with appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or non-resident alien certifications. This Section 5(e) and Section 5(b) shall survive notwithstanding any termination of this Agreement or the resignation of Escrow Agents.
f) Escrow Agents make no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to them.
g) Escrow Agents shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
h) An Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Property to any successor Escrow Agent or Agents jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the resigning Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of an Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of such counselresigning Escrow Agent's written notice of resignation to the other parties hereto. The fees for consultation If, at that time, the resigning Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Property until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
i) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Property or in the event that Escrow Agents are in doubt as to what action should be taken hereunder, Escrow Agents shall be entitled to retain the Escrow Property until Escrow Agents shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Property or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Property, in which event Escrow Agents shall disburse the Escrow Property in accordance with such counsel order or agreement. Any court order shall be paid accompanied by a legal opinion by counsel final and non-appealable. Escrow Agents shall act on such court order and legal opinion without further question.
j) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions the names of the Escrow Agents or the rights, powers, or duties of the Escrow Agents shall be issued by the Corporationother parties hereto or on such parties' behalf unless Escrow Agents shall first have given their specific written consent thereto.
(gk) Reference in this The other parties hereto authorize Escrow Agreement Agents, for any securities held hereunder, to use the Registration Statement is for identification purposes onlyservices of any United States central securities depository they reasonably deem appropriate, including, without limitation, the Depositary Trust Company and its terms and conditions are not thereby incorporated hereinthe Federal Reserve Book Entry System.
Appears in 1 contract
Samples: Escrow Agreement (Imc Mortgage Co)
Duties of Escrow Agent. Acceptance Notwithstanding anything herein to the ---------------------- contrary, the Escrow Agent's sole responsibility under this Agreement shall be for the safekeeping of the Escrow Amount and interest earned thereon, which are to be delivered only to the parties in the manner and at the times specifically authorized and directed in this Agreement. The Escrow Agent's sole obligation will be to act as a custodian of the funds in the Escrow Account as provided herein and that all administrative and record-keeping activity relating to the interests of the Corporation or subscribers of the Shares including, but not limited to, the calculation of amounts due the Corporation from funds verified by the Escrow Agent of its duties under this Escrow Agreement is subject to be on deposit hereunder shall be performed by the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control Corporation. Except with respect to the rightsobligations otherwise provided for herein, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated be under any obligation to recognizeascertain or construe, the terms and conditions of any other instruments or agreements, including specifically and without limitation, any other instruments or agreements between the Corporationreferred to in this Agreement, Underwriter and any Subscriber.
(b) The duties of nor shall the Escrow Agent be obligated to inquire as to the form, execution, sufficiency or validity of any such instruments or agreements or the identity or authority or offices of the persons executing and delivering same. It is agreed that the Escrow Agent's duties are only such as are herein specifically provided and such duties are purely ministerial in natureprovided. The Escrow Agent's primary duty Agent shall be to keep custody have no responsibility (1) for the disposition or investment of and safeguard funds by the Corporation after they are transferred by the Escrow Fund during Agent to the period Deposit Account or (2) to determine that the share certificates representing Common Stock are issued and delivered to the subscribers. The Escrow Agent shall not be required to institute legal proceedings of any kind. The Escrow Agent will not incur any liability to the escrow, to invest monies held Corporation in the Escrow Fund acting in accordance with Section 2 hereof and any written or oral instructions given to make disbursements from it hereunder by an authorized representative of the Escrow Fund in accordance with Section 4 hereof.
(c) Corporation. The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained duty or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon have any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the formEscrow Account, execution other than those duties imposed by this Agreement and by applicable statutes or validity thereoflaws. IfNotwithstanding anything herein to the contrary, in the opinion Escrow Agent may be discharged from its duties under this Agreement upon notice of such discharge from the Corporation. Upon the discharge of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment deliver all funds held hereunder to a person or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred persons designated by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under Corporation and this Escrow AgreementAgreement shall terminate.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Escrow Agreement (HCNB Bancorp Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject toliable, nor obligated to recognizeexcept for its own bad faith, any other agreements between the Corporationgross negligence or willful misconduct and, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability except with respect to the formclaims based upon such bad faith, execution gross negligence or validity thereof. If, in the opinion of the willful misconduct that are successfully asserted against Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold Stockholders and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent Buyer shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon arising out of and in connection with this B-5 73 Agreement. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its bad faith, gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Fund, or any loss of interest incident to any such delays.
(b) Escrow Agent shall be entitled to rely upon any arbitration award, order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, unless any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is determined an entity other than a natural person has full power and authority to have committed an intentional wrongful instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(c) Escrow Agent may act or pursuant to have been grossly negligent the written advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationadvice.
(gd) Reference Escrow Agent does not have any interest in the Escrow Fund deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. Upon written request of the Escrow Agent, the parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or non-resident alien certifications. This Section 10(d) and Section 10(a) of this Agreement to shall survive notwithstanding any termination of this Agreement or the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated hereinresignation of Escrow Agent.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by (a) Escrow Agent shall not be under any duty to give the Escrow Shares held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Agreement.
(b) Escrow Agent of shall not be liable, except for its duties under this Escrow Agreement is subject to the following terms and conditionsown gross negligence or willful misconduct and, which all parties to this Escrow Agreement agree shall govern and control except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against Escrow Agent, the rightsother parties hereto shall jointly and severally indemnify and hold harmless Escrow Agent (and any success or Escrow Agent) from and against any and all losses, dutiesliabilities, liabilities claims, actions, damages and immunities expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Shares, or any loss of interest incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(ad) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes pursuant to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability advice of counsel with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or matter relating to this Escrow Agreement, then the Escrow Agent is authorized to hold Agreement and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrow Shares deposited hereunder but is serving as escrow holder only and instructions having only possession thereof.
(f) Escrow Agent has acted as legal counsel for Parent and Acquirer, and may continue to act as legal counsel for Parent and Acquirer, from time to time, notwithstanding its duties as the Escrow Agent hereunder. All parties hereto expressly consent to Escrow Agent’s representation of such counsel. The fees for consultation with such Parent and Acquirer as legal counsel shall be paid by the Corporationin any matter whatsoever, including, without limitation, any controversy or dispute arising out of this Agreement.
(g) Reference in this Escrow Agreement Agent makes no representation as to the Registration Statement validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Shares to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent’s sole responsibility after that time shall be to retain and safeguard the Escrow Shares until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(j) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Shares or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Shares until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Shares or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Shares, in which event Escrow Agent shall disburse the Escrow Shares in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for identification purposes onlythe presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall act on such court order and legal opinion without further question.
(k) Parent shall pay Escrow Agent compensation for the services to be rendered by Escrow Agent hereunder at its usual law firm rates at the time of execution of this Agreement and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its terms duties hereunder (including reasonable fees, expenses and conditions are not thereby incorporated hereindisbursements of its counsel).
(l) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent’s name or the rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties’ behalf unless Escrow Agent shall first have given its specific written consent thereto.
Appears in 1 contract
Samples: Escrow Agreement (Action Products International Inc)
Duties of Escrow Agent. Acceptance by the (a) The Escrow Agent of 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 Agreement is subject Agent shall not be liable to the following terms and conditionsanyone for any damages, losses or expenses which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities 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.
(ab) 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.
(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 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 limited entitled, at the option of the Escrow Agent, to those expressly set forth in this refuse to comply with the demands of any parties so long as such disagreement shall continue. In such event, the Escrow Agreement and Agent may elect not to make any delivery or other disposition of the disputed Subscription Proceeds or any part of such disputed Subscription Proceeds. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be subject to, nor obligated or become liable to recognize, such parties or any other agreements between of them for the Corporation, Underwriter and any Subscriber.
(b) The duties failure of the Escrow Agent are only to comply with the conflicting or adverse demands of such as are herein specifically provided and such duties are purely ministerial in natureparties. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect 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 of the parties and the Subscription Proceeds and the Escrow Fund other than Agent, has received written instructions as to faithfully follow disbursement thereof; or
(ii) the instructions herein contained or delivered parties have reached an agreement resolving their differences and have notified the Escrow Agent in writing of such agreement and have provided the Escrow Agent with indemnity satisfactory to the Escrow Agent in accordance with this Escrow Agreement. The against any liability, claims or damages resulting from compliance by the Escrow Agent with such agreement.
(d) In the event of a 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, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Subscription Proceeds and may rely and act upon any written noticetake such other legal action as may be appropriate or necessary, instructionin the opinion of Escrow Agent or its legal counsel. Upon such tender, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject 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 no liability with respect to the form, execution or validity thereof. If, in the opinion such filing and discharge of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Placement Agent agrees that in the event any controversy arises under or in connection with this Agreement or the Subscription Proceeds or the Escrow Agent shall return is made a party to or intervenes in any litigation pertaining to this Agreement or the Corporation any sums delivered Subscription Proceeds, to pay to the Escrow Agent pursuant reasonable compensation for its extraordinary services and to this Escrow Agreement for which reimburse the Escrow Agent has for all costs and expenses, including legal fees and expenses, associated with such controversy or litigation; provided, however, that such compensation and legal reimbursement shall not received release instructions pursuant apply if the controversy relates to Section 4 hereof, and as to which four years have passed since deliverythe Escrow Agent’s gross negligence or willful misconduct.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel resign at any time from its obligations under this Agreement by providing written notice to the CorporationCompany and Placement Agent. Such resignation shall be effective on the date set forth in such written notice, which shall be no earlier than ninety (90) in 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 dispute or questions as 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 the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counselcompensation earned prior thereto. The fees Escrow Agent shall have no responsibility for consultation with such counsel shall be paid by the Corporationappointment of a successor escrow agent hereunder.
(g) Reference 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 Agreement Agent in any cost, expense, loss or liability unless security and indemnity satisfactory to the Registration Statement is for identification purposes onlyEscrow Agent, and its terms and conditions are not thereby incorporated hereinshall be furnished.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the a. Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Property held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The b. Escrow Agent shall not be liable liable, except for any error of judgment its own gross negligence or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, except with respect to claims based upon such gross negligence or gross negligence. The Corporation willful misconduct that are successfully asserted against Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any success or Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent arising out of and in connection with its acceptance this Agreement.
c. Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the appointment as service thereof. Escrow Agent hereunder may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the performance of its duties hereunder, unless person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is determined an entity other than a natural person has full power and authority to have committed an intentional wrongful instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
d. Escrow Agent may act or pursuant to have been grossly negligent the advice of counsel with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant matter relating to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
e. Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
f. Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities, document or agreement deposited hereunder.
g. Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Property to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written opinion notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Property until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
h. Except for the instructions to be delivered as set forth in Section 5 hereof, the Escrow Agent is hereby expressly authorized and directed to disregard any and all notices or warnings given by any of the parties hereto, or by any other person or corporation, excepting only orders or process of court, and is hereby expressly authorized to comply with and obey any and all orders, judgments or decrees of any court, and in case the said Escrow Agent obeys or complies with any such order, judgment or decree of any court, it shall not be liable to any of the parties hereto or any other person, firm or corporation by reason of such compliance, notwithstanding any such order, judgment or decree be subsequently reversed, modified, annulled, set aside or vacated, or found to have been entered without jurisdiction.
i. Buyer and Sellers shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder on a time-spent-basis (‘billing on the clock’) and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). The fees for consultation with Any such counsel compensation and reimbursement to which Escrow Agent is entitled shall be borne 50% by Buyer and 50% by Seller. Any fees or expenses of Escrow Agent or its counsel that are not paid as provided for herein may be taken from any property held by Escrow Agent hereunder.
j. No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the Corporationother parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
(g) Reference in this k. The other parties hereto authorize Escrow Agreement Agent, for any securities held hereunder, to use the Registration Statement is for identification purposes onlyservices of any United States central securities depository it reasonably deems appropriate, including, without limitation, the Depositary Trust Company and its terms and conditions are not thereby incorporated hereinthe Federal Reserve Book Entry System.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties nor any fiduciary obligations shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Merger Parties, in connection herewith, if any, including without limitation the Merger Agreement and the Indemnification Agreement, nor shall the Escrow Agent be required to determine if any person or entity has complied with the Merger Agreement or the Indemnification Agreement, nor shall any additional obligations of its duties under the Escrow Agent be inferred from the terms of the Merger Agreement or the Indemnification Agreement, even though reference thereto may be made in this Escrow Agreement is subject Agreement. In the event of any conflict between the terms and provisions of this Agreement, those of the Merger Agreement, any schedule or exhibit attached to the following Merger Agreement, the Indemnification Agreement or any other agreement among the Merger Parties, the terms and conditions, which all parties to conditions of this Escrow Agreement agree shall govern and control solely with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) . The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated liable to recognizeany Merger Party, any beneficiary or other agreements between person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to or related to the Corporation, Underwriter and any Subscriber.
(b) The duties transfer or distribution of the Escrow Agent are only Escrowed Shares or Escrowed Cash, or any portion thereof, unless such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty instruction shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or have been delivered to the Escrow Agent in accordance with this Section 8.11 and the Escrow AgreementAgent has been able to satisfy any applicable security procedures as may be required thereunder. The Escrow Agent may rely and act upon shall be under no duty to inquire into or investigate the validity, accuracy or content of any written such document, notice, instructioninstruction or request. The Escrow Agent shall have no duty to solicit any payments, direction, request, waiver, consent, receipt nor shall the Escrow Agent have any duty or other paper obligation to confirm or document which verify the accuracy or correctness of any amounts and/or Escrowed Shares or Escrowed Cash deposited with it in good faith believes to be genuine and what it purports to be and hereunder. In the event that the Escrow Agent shall be subject uncertain or believe there is some ambiguity as to no liability with respect to the formits duties or rights hereunder or shall receive instructions, execution claims or validity thereof. Ifdemands from any Merger Party hereto which, in the opinion of the Escrow Agentits opinion, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or of the provisions of this Escrow Agreement, then it shall be entitled to refrain from taking any action, and its sole obligation shall be to keep safely all property held in escrow until it shall be given a direction in writing by the Merger Parties which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final and non-appealable order or judgment of a court of competent jurisdiction. The Merger Parties agree to pursue any redress or recourse in connection with any dispute without making the Escrow Agent is authorized a party to hold and preserve intact the Escrow Fund pending the settlement of any such controversy same, except as required by final adjudication of a court law or courts of proper jurisdiction.
(d) judicial order. The Escrow Agent shall not be liable for required to, and shall not, expend or risk any error of judgment its own funds or for otherwise incur any act done or step taken or omitted by it, financial liability in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of any of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the following:
(a) The Escrow Agent shall not be subject tohold and safeguard the Escrow Shares during the Escrow Period, nor obligated to recognize, any other agreements between and shall hold and dispose of the Corporation, Underwriter and any SubscriberEscrow Shares only in accordance with the terms hereof.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations obligation to preserve, protect or exercise rights in the Escrow Shares, and shall be responsible only for reasonable measures to maintain the physical safekeeping thereof, and otherwise to perform and observe such duties on its part as are expressly set forth in this Escrow Agreement (including the Schedule attached hereto); except that it shall, at the written request of the Shareholder Representative given to the Escrow Agent at least three business days prior to the date on which the Escrow Agent is requested therein to take any action, deliver to the Shareholder Representative a proxy or other instrument in the form supplied to it by the Shareholder Representative for voting or otherwise exercising any right of consent with respect to any of the Escrow Shares held by it hereunder, to authorize therein the Shareholder Representative to exercise such voting or consent authority in respect of the Escrow Fund Shares. The Escrow Agent shall not be responsible for forwarding to any party, notifying any part with respect to, or taking any action with respect to, any notice, solicitation or other than to faithfully follow the instructions herein contained document or delivered information, written or otherwise, received from an issuer or other person with respect to the Escrow Shares, including but not limited to, proxy material, tenders, options, the pendency of calls and maturities and expiration of rights.
(i) To the extent directed to do so in writing by the Shareholder Representative, the Escrow Agent shall sell a sufficient number of the shares of Parent Common Stock held in accordance with this the Escrow AgreementFund, and shall apply the proceeds of such sale, to pay expenses reasonably incurred by the Shareholder Representative on behalf of the Shareholders as provided in Section 18(b) hereof, as certified by the Shareholder Representative. The Escrow Agent may rely and act conclusively upon any such written noticeinstruction and/or certification, instructionand shall have no obligation to determine the reasonableness of any such expenses. Any such instruction from the Shareholder Representative (A) shall be subject to any Escrow Shares previously released by the Escrow Agent pursuant to the terms of this Agreement, direction(B) must be received by the Escrow Agent (1) prior to September 30, request2000, waiverin the case of the Indemnification Portion of the Escrow Fund, consentand (2) prior to expiration of the Escrow Period, receipt or other paper or document which it with respect to the Escrow Shares thereafter remaining in good faith believes the Escrow Fund, (C) shall specifically direct the Escrow Agent whether (and to what extent) such shares to be genuine and what it purports liquidated are to be taken from the Indemnification Portion of the Escrow Fund, and (D) shall comply with the requirements of Section 8(c)(ii) below.
(A) In connection with any sale of the Escrow Shares pursuant to this Section 8(c), the Escrow Agent shall be subject entitled to no liability receive and rely upon, prior to taking action in that regard, written direction from the Shareholder Representative as to the manner and method to be undertaken in carrying out such sale, including without limitation written direction (1) identifying the number of shares to be sold, (2) identifying the brokerage firm the Shareholder Representative requests to be used or instructing the Escrow Agent to use its affiliated brokerage service, and (3) setting forth any necessary or special instructions with respect to the form, execution sale (including any stop loss or validity thereof. If, in minimum price per share instruction); and the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with Shareholder Representative shall execute and deliver any previous instructions or this Escrow Agreement, then instruments reasonably required by the Escrow Agent is authorized in order to hold and preserve intact the Escrow Fund pending the settlement of any carry out such controversy by final adjudication of a court sale or courts of proper jurisdictionliquidation.
(dB) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent have no responsibility in connection with its acceptance such sale other than to make delivery of the appointment as Escrow Agent hereunder or Shares to the performance of its duties hereunderselected brokerage firm, unless with instruction (including any special instruction provided by the Shareholder Representative), and to receive and deposit into the Escrow Agent is determined Account (to have committed an intentional wrongful act or to have been grossly negligent be administered and distributed in accordance with respect to its duties under this Escrow Agreement.
(e) any net sale proceeds received therefrom. The Escrow Agent shall return have no duty or obligation to determine or accomplish compliance with any applicable transfer restrictions; and it shall be the Corporation sole obligation of the party directing such sale to take any sums delivered remaining actions, and to provide or deliver any necessary instruments or opinions (at its expense) necessary to comply with applicable transfer restrictions or applicable securities laws. The Escrow Agent shall have no liability for any actions or omissions of any such brokerage firm, and shall have no liability for the price or execution achieved. Without limiting the generality of the foregoing, the Shareholder Representative expressly acknowledges that (1) the Escrow Shares may need to be sent to a transfer agent to be reissued in saleable form, (2) the Escrow Shares may contain or be subject to transfer restrictions that may limit their marketability and impose restrictions upon the number or types of purchasers to whom they can be offered or sold, and (3) the Escrow Agent pursuant to this Escrow Agreement shall have no liability for which any failure or delay (or any price change during any such delay) on the Escrow Agent has not received release instructions pursuant to Section 4 hereofpart of the Shareholder Representative or any transfer agent, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult withor caused by any necessary registration or delivery procedures, and obtain advice from, legal counsel (which may not be counsel to the Corporation) or compliance with any applicable transfer restrictions involved in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions transfer of such counsel. The fees for consultation with such counsel shall be paid by the CorporationEscrow Shares.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by Prior to the expiration of the Due Diligence Period, Escrow Agent of its duties under this Escrow Agreement is subject shall be entitled to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control rely upon instructions given solely by Purchaser with respect to the rights, duties, liabilities and immunities Xxxxxxx Money. After the expiration of the Due Diligence Period, all instructions to the Escrow Agent.
(a) Agent must be jointly delivered by Seller and Purchaser. The sole duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth described in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect obligation to determine whether the other parties to this Agreement are complying with any requirements of law or the Escrow Fund terms and conditions of any other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreementagreements among said parties. The Escrow Agent may conclusively rely upon and act shall be protected in acting upon any written notice, instruction, direction, request, waiver, consent, receipt order or other paper document believed by it to be genuine and to have been signed or document which presented by the proper party or parties, consistent with reasonable due diligence on the Escrow Agent’s part. The Escrow Agent shall have no duty or liability to verify any such notice, consent order or other document, and its sole responsibility shall be to act as expressly set forth in this Agreement. Escrow Agent shall be under no obligation to institute or defend any action, suit or proceeding in connection with this Agreement. If any dispute arises with respect to the disbursement of any monies, Escrow Agent may continue to hold the same pending resolution of such dispute, and the parties to this Agreement hereby indemnify and hold harmless Escrow Agent from any action taken by it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion execution of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The . Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its respective representatives shall hold in strictest confidence this Agreement and the terms and conditions are not thereby incorporated contained herein. The provisions of this Section 25 shall survive the termination of this Agreement.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by The duties of the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement entirely administrative and the Escrow Agent shall not be subject toliable to any third party as a result of any action or omission taken or made by it, nor obligated if taken in good faith, except for gross negligence or willful misconduct in performing its duties. In the event of disagreement or dispute between Kendxx xxx Sellers with respect to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties disposition of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrowFund, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject promptly initiate an appropriate legal proceeding to no liability with respect obtain a judicial determination of the respective parties' rights to the form, execution or validity thereofEscrow Fund. If, in the opinion No rights are intended to be granted to any third party hereunder. Kendxx xxx Sellers shall severally (each being responsible for fifty percent (50%) of the Escrow Agentindemnity account) indemnify, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then defend and hold harmless the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold reimburse the Escrow Agent harmless from and against for any and all claimsliability, losses, damages, liabilities costs and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent may suffer or incur by reason of its execution and performance of this Escrow Agreement. The Escrow Agent shall have no duties except those which are expressly set forth herein, and it shall not be bound by any notice of a claim, or demand with respect thereto, or any waiver, modification, amendment, termination or recision of this Escrow Agreement, unless in writing received by it and signed by Kendxx xxx/or Sellers. In the event that the Escrow Agent shall find it necessary to consult with counsel of its own choosing in connection with this Escrow Agreement, the Escrow Agent shall not incur any liability for any action taken in good faith in accordance with such advice. Kendxx xxx Sellers, jointly and severally, shall indemnify and hold harmless the Escrow Agent for any liability, loss, claim or damage incurred by the Escrow Agent in connection with its acceptance this Escrow except for any such liability, costs, expenses (including reasonable attorneys' fees), loss, claims or damage which is a result of Escrow Agent's own gross negligence or willful misconduct. This indemnification shall survive termination of this Escrow Agreement. Kendxx xxx Sellers agree that Kendxx, xx the appointment as one hand, and Sellers, collectively, on the other hand, shall each assume and pay fifty percent (50%) of all amounts due to Escrow Agent hereunder or the performance as a result of its duties hereunder, unless the this indemnification. Escrow Agent is determined not a party to, and is not bound by, any agreement, including but not limited to have committed an intentional wrongful act the Purchase Agreement, which may be evidenced by, or arise out, the foregoing instruction, other than as expressly set forth herein. In the event that any of the terms and provisions of any other agreement (excluding any amendment to have been grossly negligent with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return to between any of the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereofparties hereto, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute conflict or questions as to the construction of are inconsistent with any of the provisions hereof or its duties hereunderof this Escrow Agreement, the terms and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions provisions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, shall govern and its terms and conditions are not thereby incorporated hereincontrol in all respects.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited obligated only to those expressly perform the duties specifically set forth in this Escrow Agreement and shall under no circumstances be deemed to be a fiduciary to any party or any other Person. The Purchaser and the Seller Parties agree that Escrow Agent shall not assume any responsibility for the failure of the Purchaser and the Seller Parties to perform in accordance with this Agreement. Escrow Agent shall not be subject to, nor obligated required to recognize, invest any other agreements between the Corporation, Underwriter and any Subscriberfunds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable liable, except for any error of judgment its own gross negligence or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, except with respect to claims based upon such gross negligence or gross negligence. The Corporation willful misconduct that are successfully asserted against Escrow Agent, the Purchaser and the Seller Parties shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' fees’ fees and disbursements, which may be imposed upon arising out of and in connection with this Agreement. Without impacting the foregoing, if either the Purchaser or the Seller Parties is required to make a payment under this Section 4(b), the Purchaser, on the one hand, and the Seller Parties, on the other hand, shall each contribute 50% of the amount of such payment. Without limiting the foregoing, Escrow Agent or incurred by the Escrow Agent shall in no event be liable in connection with its acceptance investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the appointment as Escrow Funds, or any loss of interest incident to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the performance correctness of its duties hereunder, any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(d) Escrow Agent does not have any interest in the Escrow Agent Funds deposited hereunder but is determined serving as escrow holder only and having only possession thereof. Any income earnings on the Escrow Funds shall be subject to have committed an intentional wrongful act or to have been grossly negligent withholding regulations then in force with respect to its duties under United States taxes. The Seller Parties will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 or W-8 for tax identification number certification, or non-resident alien certifications. This Section 4(d) and Section 4(b) shall survive notwithstanding any termination of this Agreement or the resignation of Escrow AgreementAgent.
(e) The Escrow Agent shall return makes no representation as to the Corporation validity, value, genuineness or the collectability of any sums security or other document or instrument held by or delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryit.
(f) The Escrow Agent (and any successor Escrow Agent) may consult withat any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the Purchaser and the Seller Parties in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and obtain advice from, legal counsel (which may not be counsel to the Corporation) from any and all further obligations arising in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance connection with the written opinion and instructions of such counselthis Agreement. The fees for consultation with such counsel shall be paid by resignation of Escrow Agent will take effect on the Corporation.
earlier of (ga) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.appointment of a successor (including a court of competent jurisdiction) or
Appears in 1 contract
Duties of Escrow Agent. Acceptance by (a) This Agreement expressly sets forth all the duties of Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities any and immunities of the all matters pertinent hereto. No implied duties or obligations shall be read into this agreement against Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the . Escrow Agent shall not be subject to, nor obligated to recognize, bound by the provisions of any agreement among the other agreements between the Corporation, Underwriter and any Subscriberparties hereto except this Agreement. Escrow Agent’s duties are ministerial in nature.
(b) Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with this Agreement. The duties foregoing indemnity shall survive resignation or removal of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody termination of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereofthis Agreement.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund entitled to rely upon any order, judgment, certification, demand, notice, instrument or other than to faithfully follow the instructions herein contained or writing delivered to it hereunder without being required to determine the Escrow Agent in accordance with this Escrow Agreementauthenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may rely and act in reliance upon any written notice, instruction, direction, request, waiver, consent, receipt instrument or other paper or document which signature believed by it in good faith believes to be genuine and what it purports may assume that any person purporting to be and give notice or receipt or advice or make any statement or execute any document in connection with the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is provisions hereof has been duly authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdictiondo so.
(d) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection accordance with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementsuch advice.
(e) The Escrow Agent shall return to does not have any interest in the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, Escrowed Shares deposited hereunder but is serving as escrow agent only and as to which four years have passed since deliveryhaving only possession thereof.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions makes no representation as to the construction validity, value, genuineness or the collectability of any of the provisions hereof security or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid other documents or instrument held by the Corporationor delivered to it.
(g) Reference Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrowed Shares to any successor Escrow Agent jointly designated by the other parties hereto in this writing, or to any court of competent jurisdiction, whereupon Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.Agent shall be
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Sothebys)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any other agreements between the Corporation, Underwriter greater degree of care than it gives its own similar property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable liable, except for any error of judgment its own gross negligence or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct and, except with respect to claims based upon such gross negligence or gross negligence. The Corporation willful misconduct that are successfully asserted against Escrow Agent, the others hereto shall jointly and severally indemnify and hold the harmless Escrow Agent harmless (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, lossesactions, damages, liabilities damages and expenses, including reasonable attorneys' feesfees and disbursements, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent arising out of and in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreement.
(ec) The Escrow Agent shall return be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the Corporation any sums contrary is delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryAgent.
(fd) The Escrow Agent may consult with, act pursuant to the advice of counsel with respect to any matter relating to this Agreement and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the written opinion Escrow Fund deposited hereunder but is serving as escrow holder only and instructions having only possession thereof. Any payments of such counselincome from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The fees parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for consultation with such counsel tax identification number certification, or non-resident alien certifications. This Section 5(e) and Section 5(b) shall be paid survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by the Corporationor delivered to it.
(g) Reference Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agreement Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the Registration Statement other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(h) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Fund or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, in which event Escrow Agent shall disburse the Escrow Fund in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for identification purposes onlythe presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall act on such court order and legal opinion without further question.
(i) Buyer and Principal shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of [$1,000.00] at the time of execution of this Agreement and [$1,000.00] annually thereafter and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its terms duties hereunder (including reasonable fees, expenses and conditions disbursements of its counsel). Any such compensation and reimbursement to which Escrow Agent is entitled shall be borne 50% by Buyer and 50% by the Principal. Any fees or expenses of Escrow Agent or its counsel that are not thereby incorporated hereinpaid as provided for herein may be taken from any property held by Escrow Agent hereunder.
(j) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
Appears in 1 contract
Samples: Merger Agreement (Xfone Inc)
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated under any duty to recognize, give the Escrow Fund held by it hereunder any greater degree of care than it gives other agreements between the Corporation, Underwriter similar escrow property and shall not be required to invest any Subscriberfunds held hereunder except as directed in this Agreement.
(b) The duties Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Sellers and Purchaser shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Agent are only Fund, or any loss of interest incident to any such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereofdelays.
(c) The Escrow Agent shall be under no obligations in respect entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreementservice thereof. The Escrow Agent may rely and act in reliance upon any written notice, instruction, direction, request, waiver, consent, receipt instrument or other paper or document which signature believed by it in good faith believes to be genuine and what it purports may assume that the person purporting to be give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct the Escrow Agent shall be subject to no liability with respect on behalf of that party unless written notice to the form, execution or validity thereof. If, in the opinion of contrary is delivered to the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any error of judgment or for any act done or step action taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection accordance with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementsuch advice.
(e) The Escrow Agent shall return to the Corporation does not have any sums delivered to interest in the Escrow Agent pursuant to Fund deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. Section 8(b), this Section 8(e) and Section 17 shall survive notwithstanding any termination of this Agreement for which or the resignation of the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryAgent.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions makes no representation as to the construction validity, value, genuineness or the collectibility of any of the provisions hereof security or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid other document or instrument held by the Corporationor delivered to it.
(g) Reference in this The Escrow Agreement Agent shall not be called upon to advise any party as to the Registration Statement wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(h) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is for identification purposes only30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to retain and its terms and conditions are not thereby incorporated hereinsafeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a Joint Instruction or Final Determination.
(i) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that the Escrow Agent is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Fund until the Escrow Agent shall have received (i) a Final Determination directing delivery of the Escrow Fund or (ii) a Joint Instruction directing delivery of the Escrow Fund, in which event the Escrow Agent shall disburse the Escrow Fund in accordance with such Final Determination or
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be under any duty to give the Escrow Fund held by it hereunder any greater degree of care than it gives other similar escrow property and shall not be required to invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) Escrow Agent is hereby authorized and directed by the undersigned to deliver the Escrow Fund only in accordance with the provisions of Section 3 of this Agreement.
(c) Escrow Agent shall make no disbursement, investment or other use of funds until and unless it has collected funds. Escrow Agent shall not be liable for collection items until the proceeds of the same in actual cash have been received or the Federal Reserve has given Escrow Agent credit for the funds.
(d) The Company agrees to indemnify and hold Escrow Agent, its affiliates and their officers, employees, successors, permitted assigns and agents (each an “Indemnified Party”) harmless from all losses, costs, claims, demands, out-of-pocket expenses, damages, penalties and reasonable attorney’s fees of one counsel for all Indemnified Parties (and, to the extent an actual conflict exists, one additional conflicts counsel) suffered or incurred by any error Indemnified Party or Escrow Agent as a result of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewithwith this Agreement or any litigation or cause of action arising from or in conjunction with this Agreement or involving the subject matter hereof or Escrow Funds or monies deposited hereunder or for any interest upon any such monies, unless caused by its including, without limitation, arising out of the negligence of Escrow Agent; provided that the foregoing indemnification shall not extend to the gross negligence, bad faith or willful misconduct of Escrow Agent or gross negligenceany Indemnified Party. The Corporation This indemnity shall indemnify include, but not be limited to, all actual reasonable costs (in the case of legal fees and hold expenses, limited to the reasonable fees and out-of-pocket expenses of one counsel) incurred in conjunction with any interpleader which the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunder, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under enter into regarding this Escrow Agreement.
(e) The Escrow Agent shall return be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent may conclusively presume that an Authorized Officer of the Company has full power and authority to instruct the Escrow Agent on behalf of that party unless written notice to the Corporation any sums contrary is delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since deliveryAgent.
(f) The Escrow Agent may consult with, act pursuant to the advice of counsel with respect to any matter relating to this Agreement and obtain advice from, legal counsel (which may shall not be counsel to the Corporation) in the event of liable for any dispute action taken or questions as to the construction of any of the provisions hereof or its duties hereunder, and omitted by it shall incur no liability in acting in good faith in accordance with such advice. If the Escrow Agent becomes involved in litigation on account of this Agreement, it shall have the right to retain one outside legal counsel and the Company agrees to reimburse the Escrow Agent promptly following written opinion demand for its reasonable out-of-pocket expenses (in the case of legal fees and instructions expenses, limited to the reasonable fees and charges of such one outside counsel. The fees for consultation ) in connection with such counsel shall be paid by the Corporationlitigation.
(g) Reference Except as otherwise stated herein, the Escrow Agent does not have any interest in this the Escrow Agreement Fund deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments from the Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The Company and the Executive will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or non-resident alien certifications.
(h) The Escrow Agent makes no representation as to the Registration Statement validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(i) The Escrow Agent represents and warrants to each other party hereto that as of the date hereof, the Escrow Agent has no other relationship with the Company (including, without limitation, as a result of any depository accounts, securities accounts or cash management of the Company or its subsidiaries maintained with the Escrow Agent (or its affiliates) or indebtedness owed by the Company or its subsidiaries to the Escrow Agent (or its affiliates)).
(j) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(k) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or the Escrow Agent shall have the right to institute a xxxx of interpleader in any court of competent jurisdiction to determine the rights of the parties, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent’s sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or Joint Instructions or Final Determination.
(l) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that the Escrow Agent is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Fund until the Escrow Agent shall have received (i) a Final Determination directing delivery of the Escrow Fund or (ii) Joint Instructions directing delivery of the Escrow Fund, in which event the Escrow Agent shall disburse the Escrow Fund in accordance with such Final Determination or Joint Instructions. The Escrow Agent shall not be or become liable in any way or to any person for identification purposes onlyits failure or refusal to act prior to receipt of a Final Determination or Joint Instructions to the extent there is a disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that the Escrow Agent is in doubt as to what action it should take hereunder. The Escrow Agent shall act on such Final Determination or Joint Instructions without further question.
(m) The Company shall pay the Escrow Agent compensation for the services to be rendered by the Escrow Agent hereunder as set forth on Exhibit A attached hereto and agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (in the case of legal fees and expenses, limited to the reasonable fees, expenses and disbursements of one outside counsel). The Escrow Agent shall not be entitled to set off and deduct any unpaid fees, non-reimbursed expenses and unsatisfied indemnification rights from amounts on deposit in the Escrow Account.
(n) In the event that any escrow property shall be attached, garnished, or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Agreement, or any part thereof, the Escrow Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction, and in the event that the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable to any of the parties hereto or to any other person, firm or corporation, by reason of such compliance notwithstanding whether such writ, order or decree is subsequently reversed, modified annulled, set aside or vacated.
(o) Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its terms corporate trust business and conditions are not thereby incorporated hereinassets as a whole or in part, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall be and become the successor Escrow Agent hereunder and vested with all of the title to the whole property or trust estate and all of the trusts, powers, immunities, privileges, protections and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by the The Escrow Agent is directed to deposit all funds delivered by Purchaser pursuant to paragraph 3 in a non-interest-bearing trust account in a bank, savings and loan association or other financial institution located in 0 Palm Beach County, Florida, and disburse the funds in accordance with the provisions of its this Contract. The parties acknowledge that: (i) the duties under this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and are purely ministerial; (ii) the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between liable or responsible for the Corporation, Underwriter and any Subscriber.
(b) The duties collection of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The proceeds of any check tendered to Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
; (ciii) The Escrow Agent shall be under no obligations in respect of the Escrow Fund other than to faithfully follow the instructions herein contained or delivered to the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall not be subject to no liability with respect to the formbound by any modification, execution amendment, termination or validity thereof. If, recision of this Contract unless in the opinion of the writing and signed by Escrow Agent, Seller and Purchaser; and (iv) the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error failure of judgment or the depository, nor for any act done or step actions taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewithhereunder, unless caused by but only for its willful misconduct or gross negligence. The Corporation If Closing is consummated hereunder, Escrow Agent shall indemnify and hold deliver the funds to Seller. If this Contract is terminated in accordance with its terms, the Escrow Agent harmless from and against any and all claimsshall deliver the funds to the party entitled to receive same in accordance with the terms of this Contract. 0. If Closing is not consummated due to the default of either party, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred by shall deliver the funds to the party entitled to receive same in accordance with the provisions of this Contract. Escrow Agent shall also deliver the funds as directed in connection with its acceptance of the appointment as Escrow Agent hereunder or a writing signed by both Seller and Purchaser. In the performance of its duties hereunder, unless Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it to be genuine and signed by either of the parties (or their successors) and the Escrow Agent may assume that any individual purporting to give instructions in accordance with the provisions of this Contract has been duly authorized to do so. The Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent acting as a stakeholder, only, with respect to its duties under this Escrow Agreement.
(e) The Escrow Agent shall return the funds. Notwithstanding anything to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereofcontrary, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as controversy hereunder, Escrow Agent may interplead the funds to the construction appropriate judicial forum, whereupon Escrow Agent shall be released from all further obligations hereunder. Escrow Agent is authorized to comply with all laws, orders, judgments, decrees and regulations of any governmental authority or court and Escrow Agent shall have no liability for such compliance, notwithstanding a later reversal, modification, vacation or annulment of any law, order, judgment, decree or regulation. Purchaser and Seller agree, jointly and severally, to reimburse and indemnify Escrow Agent for all loss, liability, costs and expenses (including, without limitation, reasonable attorneys' fees at trial and appellate levels, whether for outside counsel or Escrow Agent's own time) incurred by Escrow Agent arising out of or in connection with the provisions hereof or performance of its duties hereunderhereunder (including, without limitation, the cost of defending against any claim or liability arising out of or relating to this Contract). Seller and it shall incur no liability in acting Purchaser hereby release Escrow Agent for any act done or omitted to be done by Escrow Agent in good faith in accordance the performance of its duties hereunder. Purchaser agrees that Escrow Agent may represent Seller in any litigation arising out of or in connection with this Contract and Purchaser acknowledges that Escrow Agent is the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporationlaw firm representing Seller.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Samples: Contract for Sale and Purchase
Duties of Escrow Agent. Acceptance The Deposit shall be held in a non-interest bearing account by the Escrow Agent Agent, and shall be credited towards payment of its duties under this Escrow Agreement is subject the Purchase Price at Closing or otherwise disbursed according to the following terms and conditionsof this Agreement. In its capacity as escrow agent, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent shall be limited to have only those duties and obligations as are expressly set forth in herein. No implied duties or obligations shall be read into this Escrow Agreement and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriber.
(b) The duties of the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The against Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow. Except as explicitly stated herein, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The Escrow Agent shall be under no obligations in respect of the Escrow Fund obligation to refer to any other than to faithfully follow the instructions herein contained documents between or delivered among Purchaser and Seller or otherwise related to the Escrow Agent in accordance with this Escrow AgreementProperty or the transaction contemplated hereunder. The Escrow Agent may rely and act upon any written notice, instruction, direction, request, waiver, consent, receipt or other paper or document which it in good faith believes to be genuine and what it purports to be and the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for to either party or any other person on account of any error of judgment or for judgment, any act done or step stop taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it else Escrow Agent may in good faith do or refrain from doing in connection herewith, unless caused by its or arising out of actual and intentional misconduct, willful misconduct disregard of this Agreement or gross negligencenegligence on the part of the Escrow Agent. The Corporation Escrow Agent shall indemnify be entitled to rely, and shall not be subject to any liability in acting in reliance, upon any writing furnished to Escrow Agent by either party, and shall be entitled to treat as genuine and as the document which it purports to be, any letter, paper or other document furnished to Escrow Agent in connection with this Agreement. Escrow Agent further may rely on any affidavit of either Party or any other person as to the existence and accuracy of any facts stated therein to be known by the affiant. In the event of any dispute relative to the deposit monies held in escrow, the Escrow Agent may, in its sole discretion, pay such deposit monies into the Clerk of the Superior Court of Oxford County or Cumberland County, Maine, with notice to the parties hereto at the addresses recited hereinabove, and thereupon the Escrow Agent shall be discharged from its obligations as recited herein, and each party to this Agreement shall thereafter hold the Escrow Agent harmless in such capacity. Both parties hereto agree that the Escrow Agent may (a) deduct the administrative cost of opening, maintaining and closing the said escrow account from the deposit monies before disbursing any of said monies, and (b) deduct the cost of bringing such Interpleader action, from the deposit monies held in escrow prior to the forwarding of the same to the Clerk of such Court. Purchaser and Seller shall jointly and severally defend, indemnify and hold Escrow Agent for solely for its actions as escrow agent under this Agreement harmless from and against any and all claimslosses, lossesliabilities, damages, liabilities and expensescosts, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent expenses or claims incurred by the Escrow Agent in connection with its acceptance of the appointment as Escrow Agent hereunder or the performance of its duties hereunderas escrow agent under this Agreement, unless except only to the extent caused by the Escrow Agent is determined Agent’s intentional misconduct, bad faith, willful disregard of its obligations hereunder or gross negligence. As between themselves, each party shall be responsible for one-half of the total costs incurred in connection with such indemnity, and each shall have the right of contribution from the other to have committed an intentional wrongful act or the extent necessary to have been grossly negligent with respect to its duties under achieve such allocation. The provisions of this Escrow Section 16 shall survive the termination of this Agreement.
(e) The Escrow Agent shall return to the Corporation any sums delivered to the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions pursuant to Section 4 hereof, and as to which four years have passed since delivery.
(f) The Escrow Agent may consult with, and obtain advice from, legal counsel (which may not be counsel to the Corporation) in the event of any dispute or questions as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the Corporation.
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
Duties of Escrow Agent. Acceptance by In addition to the Duties set forth in Article VIII, the Duties of the Escrow Agent of its duties under this Escrow Agreement is subject to shall include the following terms and conditions, which all parties to this Escrow Agreement agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent.following:
(a) The duties Escrow Agent shall hold and responsibilities safeguard the Escrow Shares during the Escrow Period, shall treat such Escrow Fund as a trust fund in accordance with the terms of this Agreement and Article VIII and not as the property of Acquirer, and shall hold and dispose of the Escrow Agent shall be limited to those expressly set forth Shares only in this Escrow Agreement and accordance with the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreements between the Corporation, Underwriter and any Subscriberterms hereof.
(b) The duties of Escrow Shares shall be voted by the escrow Agent in accordance with the instructions received by the Escrow Agent are only such as are herein specifically provided and such duties are purely ministerial in nature. The Escrow Agent's primary duty shall be to keep custody of and safeguard the Escrow Fund during the period of the escrow, to invest monies held in the Escrow Fund in accordance with Section 2 hereof and to make disbursements from the Escrow Fund in accordance with Section 4 hereof.
(c) The beneficial owners of such shares. In the absence of such instructions, the Escrow Agent shall be under no obligations obligation to vote such shares. The Escrow Agent need not forward proxy information, annual or other reports or other information received from Acquirer with respect to the Escrow Shares.
(c) Promptly following termination of the escrow Period as set forth in respect Section 3 hereof, the Escrow Agent (i) shall deposit with the Acquirer's stock transfer agent (which is currently Boston EquiServe L.P.) the number of Escrow Shares and other property in the Escrow Fund in excess of the amount of such Escrow Shares or other than property (as set forth in a certificate of the Acquirer) as being sufficient to faithfully follow the instructions herein contained or satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to the Escrow Agent prior to termination of the Escrow Period with respect to facts and circumstances existing prior to expiration of the Escrow Period and (ii) shall cause such transfer agent to transfer such Escrow Shares and other property to the Shareholders. As soon as all those claims referenced in accordance with this Escrow Agreement. The clause (i) above have been resolved, the Escrow Agent may rely shall cause such transfer agent to deliver to such Shareholders all of the Escrow Shares and act other property remaining in the Escrow Fund and not required to satisfy such claims and expenses. Each Shareholder shall receive that number of Escrow Shares equivalent to such Shareholder's percentage interest in the Escrow Fund as set forth in ANNEX B hereto, as amended from time to time.
(d) Pursuant to Section 8.5(b) of the Merger Agreement, for the purpose of compensating Acquirer for its Damages pursuant to this Agreement, the Acquirer Common Stock in the Escrow Fund shall be valued based on the average closing price for Acquirer Common Stock for the twenty day trading period immediately prior to the date that an indemnification claim is made (the "ACQUIRER STOCK PRICE"). Acquirer shall set forth the Acquirer Stock Price in a Certificate delivered to the Escrow Agent. If the value to be distributed to Acquirer (or to any Shareholder upon any written noticea termination of the escrow) is not evenly divisible by the Acquirer Stock Price, instructionthe Escrow Agent shall round down the number of shares to be distributed to the next highest number of shares and shall cause the transfer agent of the Escrow Shares to distribute that number. In lieu of the functional interest not distributed, directionAcquirer shall furnish the Escrow Agent, requestand the Escrow Agent (or such stock transfer agent) in turn will distribute to Acquirer, waiver, consent, receipt or other paper or document cash equal to such fractional interest times the Acquirer Stock Price. Acquirer shall be deemed to have purchased such fractional interests with respect to which it in good faith believes has furnished funds to be genuine the Escrow Agent. Accordingly, the Escrow Agent, upon receipt of such funds, shall deliver the corresponding number of shares to Acquirer. In all events, Acquirer shall so purchase only a whole number of shares. Any cash so received from Acquirer and what it purports to be and not so immediately distributed by the Escrow Agent shall be subject to no liability with respect to the form, execution or validity thereof. If, in the opinion of the Escrow Agent, the instructions it receives are ambiguous, uncertain or in conflict with any previous instructions or this Escrow Agreement, then the Escrow Agent is authorized to hold and preserve intact the Escrow Fund pending the settlement of any such controversy by final adjudication of a court or courts of proper jurisdiction.
(d) The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, unless caused by its willful misconduct or gross negligence. The Corporation shall indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys' fees, which may be imposed upon the Escrow Agent or incurred retained by the Escrow Agent in connection with its acceptance as part of the appointment as Escrow Agent hereunder or the performance of its duties hereunderFund, unless the Escrow Agent is determined to have committed an intentional wrongful act or to have been grossly negligent with respect to its duties under this Escrow Agreementbut need not be invested.
(e) The Notwithstanding the foregoing provisions of this Section 4 or the provisions of Section 8.5 of the Merger Agreement, the number of Escrow Agent shall return Shares to the Corporation any sums be delivered to Acquirer for claims pursuant to section 8.5 of the Merger Agreement (the "CLAIMED SHARES") shall be, for each date that an indemnification claim is made, the product of (i) the aggregate number of Claimed Shares multiplied by (ii) the quotient obtained by dividing (A) the number of Escrow Shares deposited in the Escrow Agent pursuant to this Escrow Agreement for which the Escrow Agent has not received release instructions Fund pursuant to Section 4 hereof, 1 of this Agreement and as to which four years have passed since delivery.
Section 8.11 of the Merger Agreement by (fB) The Escrow Agent may consult with, and obtain advice from, legal counsel 429,270 shares (which may not number shall be counsel to the Corporation) adjusted in the event of any dispute or questions manner as to the construction of any provided for in Section 1.6(c) of the provisions hereof or its duties hereunder, and it shall incur no liability in acting in good faith in accordance with the written opinion and instructions of such counsel. The fees for consultation with such counsel shall be paid by the CorporationMerger Agreement).
(g) Reference in this Escrow Agreement to the Registration Statement is for identification purposes only, and its terms and conditions are not thereby incorporated herein.
Appears in 1 contract
