Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21.
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Escrow Agent. Century 21 Xxxx Xxx Realty, Inc. Shall act ass escrow Agent under this Agreement. The sole responsibility of the Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, to deposit the Escrow Deposit into an account with a local bank upon execution and no other duties shall be implieddelivery of all forms and documents necessary to do so and to disburse said funds according to the terms of this Agreement. The Escrow Agent shall not notify the parties hereto of the date of deposit, name of institutions, and current interest rate within (f) days of deposit. In the event of a breach of this Agreement by either Seller or Buyer, or if in the sole discretion of the Escrow Agent, some doubt exists as to when, to whom, or under what circumstances such Escrow Deposit shall be subject disbursed hereunder, and the parties hereto are unable after twenty(20) days' prior written notice thereof from Escrow Agent to any fiduciary agree and direct Escrow Agent, in writing, as to when, to whom or other implied duties, regardless of whether a Default has occurred and is continuing. The under what circumstances Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powersdisburse the same. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty entitled to inquire 1060441.101066947.03-CHISR01A - MSW interplead said Escrow Deposit into the Circuit Court of Pasco County, Florida, without further liability or investigate the validityresponsibility on its part. Costs, accuracy expenses, or content of attorney's fees incurred by Escrow Agent in connection with any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which Interpleader may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that deducted by the Escrow Agent shall be uncertain as from the amount of the Escrow Deposit prior to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any deposit into the registry of the provisions of this Section 2.21 or the Aleris Increase Joinder AmendmentCourt. In any event, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead however, all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The parties agree that Escrow Agent shall have no liability or obligation with respect any further responsibility to any party or person whomsoever for any disbursement of the Escrowed Amounts except for Escrow Deposit made by the Escrow Agent in good faith unless such disbursement shall constitute a willful breach of the duties and obligations of Escrow Agent under this Agreement, or gross negligence on the part of the Escrow Agent’s willful misconduct . In the event of any default by the Buyer, any costs, expenses or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the attorney's fees deducted by Escrow Agent a party from the escrow deposit shall be reimbursed and paid by the Buyer to the same. Anything Seller in this Agreement or the Aleris Increase Joinder Amendment addition to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) all other remedies and damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes shall immediately deposit for collection and shall hold all Deposits delivered to perform only Escrow Agent. Escrow Agent shall not be accountable for the yield earned on such duties escrow account, except for interest actually earned. If there is any dispute as to whether the Escrow Agent is obligated to deliver any monies which it holds or to whom said monies are expressly set forth to be delivered, the Escrow Agent shall not be obligated to make any delivery, but in this Section 2.21 and such event the Escrow Agent may hold same until receipt by the Escrow Agent of an authorization in writing signed by all of the parties having an interest in such dispute directing the disposition of same; or, in the Aleris Increase Joinder Amendmentabsence of such authorization, which the Escrow Agent may hold such monies with interest thereon until the final determination of the rights of the parties pursuant to appropriate legal proceedings. If such written authorization is not given or such legal proceeding for determination not commenced and diligently continued, the Escrow Agent may bring an appropriate action or proceeding for leave to deposit the monies it holds in escrow in court, pending such determination. In the event the Escrow Agent places the monies it holds in escrow in the registry of the Court having jurisdiction with regard to this transaction and files en action of interpleader naming the parties hereto, the Escrow Agent shall be deemed purely ministerial in nature, released and no other duties shall be impliedrelieved from any and all further obligations and liability hereunder. The Escrow Agent shall not be subject to responsible for any fiduciary acts or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts omissions except for the Escrow Agent’s willful misconduct or gross negligence. To In the extent practicableevent of any dispute with regard to the monies which are being held by Escrow Agent, then with respect to the Loan Parties costs and the Aleris Incremental Term Lenders agree to pursue any redress or recourse expenses incurred by Escrow Agent in connection with any dispute the filing of an interpleader action (other than with respect to a dispute involving the including, but not limited to, reasonable attorneys' and paralegals' fees for Escrow Agent's attorneys) without making the non-prevailing party hereby indemnifies and holds Escrow Agent a party to the same. Anything in this Agreement harmless from all loss, cost or the Aleris Increase Joinder Amendment to the contrary notwithstandingexpense including, in no event shall the but not limited to, attorneys' fees and court costs through all trial and appellate levels incurred by Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance connection with this Section 2.21Agreement.
Appears in 1 contract
Samples: Agreement for Purchase and Sale (National Residential Properties Nv Inc)
Escrow Agent. The terms and conditions set forth in this Agreement shall constitute both an agreement between Seller and Buyer and instructions for Escrow Agent, which Escrow Agent shall acknowledge and agree to be bound by, as evidenced by its execution of this Agreement. Seller and Buyer shall promptly execute and deliver to Escrow Agent any separate or additional escrow instructions requested by Escrow Agent which are consistent with the terms of this Agreement. Any separate or additional instructions shall not modify or amend the provisions of this Agreement unless otherwise expressly agreed by mutual consent of Buyer and Seller. Buyer and Seller both hereby acknowledge and agree that Escrow Agent shall hold and deliver the Xxxxxxx Money Deposit and all other deposits which may be made under this Agreement in accordance with the terms and conditions of this Agreement and that Escrow Agent shall be relieved of all liability and held harmless by both Seller and Buyer in the event Escrow Agent makes any disbursement of such monies in accordance with the terms and provisions of this Agreement. Escrow Agent shall be relieved from any responsibility or liability and held harmless by both Buyer and Seller in connection with the discharge of Escrow Agent’s duties hereunder provided that Escrow Agent exercises ordinary and reasonable care in the discharge of such duties. By their execution and delivery of this Agreement, the Buyer and Seller acknowledge and confirm that under certain circumstances deposits (including the funds subject to this Agreement) may not be insured or fully insured by the Federal Deposit Insurance Corporation (“FDIC”). Each party has made its own analysis of FDIC insurance regulations affecting, or potentially affecting, the funds subject to this Agreement and is not relying upon any advice from the Escrow Agent as to FDIC matters. The Buyer and Seller understand and agree that Escrow Agent is holding the escrow funds as agent and that the funds are not trust funds. Simultaneously with final disbursement of the escrow funds pursuant to this Agreement, Escrow Agent shall be released of all liability and responsibility under this Agreement. The Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine. Escrow Agent may assume that any person purporting to give any writing, notice, advice or instructions in connection with the provisions hereof, has been duly authorized to do so. The Escrow Agent undertakes and agrees to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be impliedherein. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent hereunder shall be inferred from the terms of such agreements, except limited to the extent such safe keeping of the escrow funds and the disposition of same in accordance with the provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or requesthereof. The Escrow Agent shall have no duty the right, but not the obligation, to solicit any payments from any Person which may be due require a written statement signed by the Buyer and Seller confirming satisfaction of all conditions precedent to it or in respect disbursement of the Escrowed Term Loansfunds hereunder and authorizing disbursement of said funds, together with accrued interest, if any. All notices to or any applicable fees (including arranger and commitment fees). In the event that the from Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands in writing. The Buyer and Seller hereby release Escrow Agent from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment losses incurred with respect to certain circumstances, and thereafter be fully relieved from any and all liability funds deposited hereunder by reason of the absence of or obligation insufficiency of FDIC insurance with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentfunds. The Buyer and Seller acknowledge that Escrow Agent has entered into this Agreement at their specific request and, in order to induce Escrow Agent to accept said escrow, do hereby agree to indemnify and hold Escrow Agent harmless from all loss, cost and expense, including reasonable attorneys’ fees and court costs, which it may consult suffer or incur as a result of acting as Escrow Agent under this Agreement, including, without limitation, claims arising with legal counsel respect to the absence or insufficiency of its selection in FDIC insurance for funds subject to this Agreement. In the event of any dispute or question as to the meaning disbursement of escrow funds or construction of any of the provisions hereof claim thereto by any party or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The person, Escrow Agent shall have no liability or obligation with respect the right to bring a suit in interpleader in the Escrowed Amounts except Circuit Court for Xxxxx County, Florida naming the parties to this Agreement and any other parties as may be appropriate in the opinion of Escrow Agent’s willful misconduct or gross negligence. To the extent practicableThe Buyer and Seller shall indemnify and hold harmless Escrow Agent from all costs, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse including attorneys’ fees, in connection with any dispute (other than with respect to a dispute involving such interpleader action. Upon the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out filing of said suit and deposit of the services provided hereunder or under balance of escrow funds in the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including lost profits), even if the Escrow Agent has been advised registry of the likelihood of such loss or damage and regardless of the form of action. Should the Escrow Agent become liable for (i) the payment of any TaxesCourt, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled have the right to deduct such Taxeswithdraw from said suit, interest and penalties from the Escrowed Amounts prior to its release all obligations of the Escrowed Amounts in accordance with this Section 2.21Escrow Agent shall cease and terminate.
Appears in 1 contract
Samples: Real Estate Sale Agreement (Phillips Edison Grocery Center REIT III, Inc.)
Escrow Agent. The Escrow Agent undertakes Agent’s duties pursuant to perform only such duties as this Agreement are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and the Escrow Agent shall incur no other liability whatsoever except for its willful misconduct or gross negligence, so long as the Escrow Agent is acting in good faith. The Parties hereby release the Escrow Agent from any liability for any error of judgment or for any act done or omitted to be done by the Escrow Agent in the good faith performance of its duties hereunder and do each hereby indemnify the Escrow Agent against, and shall be impliedhold, save, and defend the Escrow Agent harmless from, any costs, liabilities, and expenses incurred by the Escrow Agent in serving as Escrow Agent hereunder and in faithfully discharging its duties and obligations hereunder. The Escrow Agent shall not be subject is acting as a stakeholder only with respect to the Deposit. If there is any fiduciary or other implied duties, regardless of dispute as to whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent is obligated to deliver the Deposit or as to whom the Deposit is to be required to determine if any Person has complied with any such agreementsdelivered, nor shall any additional obligations of the Escrow Agent be inferred from may refuse to make any delivery and may continue to hold the terms Deposit until receipt by the Escrow Agent of an authorization in writing, signed by Seller and Buyer, directing the disposition of the Deposit, or, in the absence of such agreementswritten authorization, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall hold the Deposit until a final determination of the rights of the Parties in an appropriate judicial proceeding. If such written authorization is not be liable given, or a proceeding for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Datesuch determination is not begun, the Designated Company shall deliver within thirty (30) days after notice to the Escrow Agent authorized signers’ forms of such dispute, the Escrow Agent may bring an appropriate action or proceeding for leave to deposit the Deposit in the form a court of Exhibit A to the Aleris Increase Joinder Amendmentcompetent jurisdiction pending such determination. The Escrow Agent shall be under reimbursed for all costs and expenses of such action or proceeding, including reasonable attorneys’ fees and disbursements, by the Party determined not to be entitled to the Deposit. Upon making delivery of the Deposit in any of the manners herein provided, the Escrow Agent shall have no duty to inquire 1060441.101066947.03-CHISR01A - MSW into further liability or investigate the validity, accuracy or content of any such document, notice, instruction or requestobligation hereunder. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that execute the Escrow Agent shall be uncertain as Receipt attached hereto in order to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of confirm that it has received the provisions of this Section 2.21 or Deposit and is holding the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based same on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts deposit in accordance with this Section 2.21the provisions hereof.
Appears in 1 contract
Samples: Dealership Asset Purchase Agreement (LMP Automotive Holdings, Inc.)
Escrow Agent. Commonwealth Land Title Insurance Company shall hold the Deposit in an interest bearing FDIC insured account. The duties of the Escrow Agent undertakes to perform only such duties are determined solely by this Agreement and are purely ministerial in nature. If for any reason a Closing does not occur as are expressly set forth in this Section 2.21 Agreement and in either party gives notice to Escrow Agent demanding payment of the Aleris Increase Joinder AmendmentDeposit, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The then Escrow Agent shall not be subject give prompt notice to any fiduciary or the other implied duties, regardless party of whether a Default has occurred and is continuingsuch demand. The If Escrow Agent shall does not have any duty receive notice of objection from such other party to take any discretionary action or exercise any discretionary powers. The the proposed payment within five (5) business days after receipt by such other party of Escrow Agent's notice, then Escrow Agent shall neither be responsible foris hereby authorized and directed to make such payment. If Escrow Agent does receive such notice of objection within said five (5) day period, nor chargeable withEscrow Agent is not obligated to make any delivery, knowledge ofbut may hold the funds until receipt of a written authorization signed by all persons having an interest in the dispute, nor have any requirements to complydirecting the disposition of the funds. In the absence of a written authorization, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreementsmay hold the funds until the rights of the parties have been finally determined in an appropriate proceeding. Moreover, nor shall any additional obligations of the Escrow Agent be inferred from may bring an appropriate proceeding for leave to deposit the terms funds pending a determination of such agreementsthe rights of the parties. If threatened with litigation, except to the extent such provisions are repeated Escrow Agent may interplead all interested parties in an appropriate action and may deposit the funds with the clerk of the court; thereupon the Escrow Agent will have no further liability under this Section 2.21 or in the Aleris Increase Joinder AmendmentAgreement. The Escrow Agent may rely upon retain counsel in any action under this Agreement. Seller and Purchaser shall reimburse the Escrow Agent for all costs and expenses incurred by it in connection with any court proceeding under this Agreement in an amount sufficient to pay these costs and expenses. The Escrow Agent is not be liable for acting any mistake of fact or refraining error of judgment, or for any acts or omissions, unless caused by its gross negligence or willful misconduct. The parties to this Agreement each release the Escrow Agent from acting upon any act done or omitted to be done by the Escrow Drawdown Request furnished Agent in good faith in performance of its obligations under this Agreement. The Escrow Agent is entitled to it hereunder and reasonably rely on any document or signature believed by it to be genuine and may assume that any person purporting to have been signed and presented give any writing or instruction in connection with this Agreement is duly authorized to do so by the Designated Companyparty on whose behalf such writing or instruction is given. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to The undersigned jointly and severally indemnify and protect the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validityfrom and hold it harmless against any loss, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interestliability, or any applicable fees (including arranger and commitment fees). In expense incurred without gross negligence or willful misconduct on the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any part of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of its duties under this Agreement, as well as the services provided hereunder costs and expenses of defending against any claim or liability arising under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21Agreement.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxesthe fees set forth in Appendix IV to this Agreement, interest which shall be paid by Yahoo!. All fees and penalties from the Escrowed Amounts prior to its release expenses of the Escrowed Amounts Escrow Agent incurred in the ordinary course of performing its responsibilities hereunder will be paid by Yahoo! upon receipt of a written invoice by the Escrow Agent. Any extraordinary fees and expenses, including without limitation any fees or expenses incurred by the Escrow Agent in connection with a dispute over the distribution of Escrow Property or the validity of a claim or claims by Yahoo! made in an Officer’s Certificate, will be paid 50% by Yahoo! and 50% by the Company Indemnifying Stockholders in accordance with the Pro Rata Share. The liability for the extraordinary fees and expenses of the Escrow Agent otherwise owed by the Company Indemnifying Stockholders may be paid by Yahoo! and recovered as a claim hereunder out of the Escrow Fund. If Yahoo! has paid the Company Indemnifying Stockholders’ portion of such fees and expenses as permitted under this Section 2.217(a) then the Escrow Agent will, upon demand by Yahoo!, transfer to Yahoo! a portion of the Escrow Property, equal to such portion of fees and expenses. In the event the balance in the Escrow Fund is not sufficient to pay the Company Indemnifying Stockholders’ portion of such extraordinary fees and expenses of the Escrow Agent or in the event the Escrow Agent incurs any liability to any person, firm or corporation by reason of its acceptance or administration of this Escrow Agreement, Yahoo! agrees to indemnify the Escrow Agent for such extraordinary fees and expenses or costs and expenses, including, without limitation, counsel fees and expenses, as the case may be. Notwithstanding the foregoing, no indemnity need be paid in the event of the Escrow Agent’s gross negligence, bad faith or willful misconduct.
Appears in 1 contract
Escrow Agent. The Seller and Purchaser hereby authorize Cors & Xxxxxxx, LLC, 000 X. Xxxx Xxxx Way, Suite 400, Cincinnati, OH 45202 to act as the escrow agent for the Closing of this transaction (“Escrow Agent”). Escrow Agent undertakes shall hold all Closing funds (the “Funds”) due under this Agreement in a non-interest bearing account in a financial institution of its choosing. In the event of doubt as to perform only Escrow Agent’s duties or liabilities under the provisions of this Article of the Agreement, the Escrow Agent may, in Escrow Agent’s sole discretion, continue to hold the Funds until the parties mutually agree in writing to the disbursement thereof, or until a judgment of court of competent jurisdiction shall determine the rights of the parties thereto, or the Escrow Agent may institute an action for interpleader of the Funds, or any portion thereof, and deliver the Funds, or any portion thereof, to the Clerk of the Court for Xxxxxxxx County, Ohio, in connection with such duties action, and upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall terminate, except to the extent of accounting for the Funds, if any, paid out of escrow. In the event of any suit to which the Escrow Agent is made a party by virtue of acting as are expressly set forth in Escrow Agent under this Section 2.21 Article, including but not limited to an action for interpleader initiated by Escrow Agent, Escrow Agent shall be entitled to recover its reasonable attorneys’ fees and costs incurred at the trial and all appellate levels of litigation from the non-prevailing party, or in the Aleris Increase Joinder Amendmentcase of an interpleader action, which shall be deemed purely ministerial in naturefrom the Funds deposited with the court and the non-prevailing party. Purchaser, Seller, and no other duties shall MCH hereby jointly indemnify and hold the Escrow Agent harmless from and against any loss, liability, claim or damage whatsoever (including reasonable attorneys’ fees and court costs at trial and all appellate levels) the Escrow Agent may incur or be impliedexposed to in its capacity as Escrow Agent under this Article except for gross negligence or willful misconduct. The Escrow Agent shall not be subject liable to either party for misdelivery of any fiduciary Funds held in escrow unless such misdelivery shall be due to gross negligence or other implied duties, regardless of whether a Default has occurred wanton and is continuingwillful misconduct on Escrow Agent’s part. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall parties acknowledge that the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees)is Purchaser’s attorney. In the event that any dispute arises between Purchaser and either Seller, MCH or both, Escrow Agent may continue to represent Purchaser as Purchaser’s legal counsel regardless of whether or not the Escrow Agent shall be uncertain as continues to its duties or rights hereunder or shall receive instructionshold the Funds, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21portion thereof.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Medical Connections Holdings, Inc.)
Escrow Agent. The Escrow Agent undertakes shall hold the Exxxxxx Money in an interest bearing account with the interest accruing to perform only the benefit of the party ultimately receiving the Exxxxxx Money. In the event the Escrow Agent is in doubt as to its duties and liabilities under the provisions of this Contract, the Escrow Agent may, in its sole discretion, continue to hold the deposit until the parties mutually agree in writing to the disbursement thereof, or until a judgment under a court of competent jurisdiction shall determine the rights of the parties thereto, or it may deposit all of the Exxxxxx Money with the Clerk of the Circuit Court of Palm County, Florida, and upon notifying all parties concerning such duties action, all liability on the part of the Escrow Agent shall fully cease and terminate, except to the extent of accounting for any monies delivered out of escrow. In the event of any suit between the Purchaser and the Seller wherein the Escrow Agent is named a party by virtue of acting as are expressly set forth in this Section 2.21 and Escrow Agent hereunder, or in the Aleris Increase Joinder Amendmentevent of any suit wherein Escrow Agent interpleads the subject matter of this escrow, which Escrow Agent shall be deemed purely ministerial in natureentitled to recover reasonable attorneys’ fees and costs incurred, said fees and no other duties shall costs to be impliedcharged and assessed as “costs” and paid from the monies held by Escrow Agent or held by the Clerk of the Circuit Court, as the case may be. The All parties agree that the Escrow Agent shall not be liable to any party or person whomsoever for misdelivery to the Purchaser or the Seller of the monies subject to any fiduciary this escrow unless such misdelivery shall be due to willful breach of this Contract or other implied duties, regardless gross negligence on the part of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as the Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if liable for the failure of any Person has complied banking institution with any such agreements, nor shall any additional obligations of which the deposit is deposited. Seller acknowledges that Escrow Agent be inferred from is the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon attorney for Purchaser and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event agrees that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving between the Escrow Agent) without making the Escrow Agent a party to the same. Anything in parties regarding this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstandingContract, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, represent Purchaser without claim of conflict of interest and penalties from due to the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21service by Purchaser’s counsel as Escrow Agent hereunder.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (America First Tax Exempt Investors Lp)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 All fees and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, expenses including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations attorney's fees of the Escrow Agent incurred in entering into this Agreement and in the ordinary course of performing its responsibilities (in accordance with the attached fee schedule which may be inferred from subject to change annually) hereunder will be paid by Buyer upon receipt of a written invoice by the terms Escrow Agent. Any extraordinary fees and expenses including attorney's fees, including without limitation any fees or expenses incurred by the Escrow Agent in connection with a dispute over the distribution of Escrow Amount or the validity of a Claim or Claims by Buyer will be paid by the non-prevailing party in such agreementsdispute, except provided, however, if ------------------ neither party has clearly prevailed, the arbitrator may apportion such fees and expenses between Buyer and the Holders, subject to the extent such provisions are repeated in this of Section 2.21 or in the Aleris Increase Joinder Amendment4(f). The Holders' liability for the extraordinary fees and expenses of the Escrow Agent may rely upon be paid by Buyer and shall not be liable for acting or refraining from acting upon any recovered as a Claim hereunder out of the Escrow Drawdown Request furnished to it hereunder Fund. If Buyer has paid the Holders' portion of such fees and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to expenses as permitted under this Section 6(a) then the Escrow Agent authorized signers’ forms in the form of Exhibit A will, upon demand by Buyer, transfer to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect Buyer a portion of the Escrowed Term Loans, interest, or any applicable Escrow Amount equal to such portion of fees (including arranger and commitment fees)expenses. In the event that the balance in the Escrow Fund is not sufficient to pay the extraordinary fees and expenses of the Escrow Agent, as described in the prior paragraph, or in the event the Escrow Agent shall be uncertain as to incurs any liability by reason of its duties acceptance or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions administration of this Section 2.21 or the Aleris Increase Joinder AmendmentEscrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties Buyer and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of Holders, jointly and severally as between Buyer and the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstancesHolders collectively, and thereafter be fully relieved from severally and not jointly as among the Holders individually, agree to indemnify the Escrow Agent, its officers, directors and employees, against any and all such liability or obligation with respect to such interpleaded assets for its extraordinary fees and expenses or any action or nonaction based on such declaratory judgmentcosts and expenses, including, without limitation, counsel fees and expenses, as the case may be. The Escrow Agent may consult with legal counsel of its selection Notwithstanding the foregoing, no indemnity need be paid in the event of the Escrow Agent's gross negligence, bad faith or willful misconduct. Buyer and the Holders, jointly and severally as between Buyer and the Holders collectively, and severally and not jointly as among the Holders individually, agree to assume any dispute and all obligations imposed now or question as to the meaning or construction of hereafter by any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation applicable tax law with respect to the Escrowed Amounts except for the holding and payment of Escrow Agent’s willful misconduct or gross negligence. To the extent practicableAmount under this Agreement, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making indemnify and hold the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstandingharmless from and against any taxes, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out additions of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxeslate payment, interest, penalties and other amounts upon demand. Without limiting the foregoingexpenses, that may be assessed against the Escrow Agent shall on any such payment or other activities under this Agreement. Buyer and the Holders undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. Buyer and the Holders, jointly and severally as between Buyer and Holders collectively, and severally and not jointly as among the Holders individually, agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be entitled to deduct such Taxesor become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees), interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21penalties.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes has agreed to perform only act as such duties for the convenience of the parties without fee or other charges for such services as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be impliedEscrow Agent. The Escrow Agent shall not be subject liable: (a) to any fiduciary of the parties for any act or omission to act except for its own gross negligence or willful misconduct; (b) for any legal effect, insufficiency, or undesirability or any instrument deposited with or delivered by Escrow Agent or exchanged by the parties hereunder, whether or not Escrow Agent prepared such instrument; (c) for any loss or impairment of funds that have been deposited in escrow while those funds are in the course of collection, or while those funds are on deposit in a financial institution, if such loss or impairment results from the failure, insolvency or suspension of a financial institution; (d) for the expiration of any time limit or other implied dutiesconsequences of delay, regardless of whether unless a Default properly executed written instruction from one the parties hereto, accepted by Escrow Agent, has occurred and is continuing. The instructed Escrow Agent shall not have any duty to take any discretionary comply with said time limit; (e) for the default, error, action or exercise any discretionary powersomission of either party to the escrow. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to complyAgent, in its capacity as escrow agent, shall be entitled to rely on any document or paper received by it, believed by such Escrow Agent, within good faith, to be bona fide and genuine. In the terms and conditions event of any other agreementdispute as to the disposition of any monies held in escrow, instrument or document between or among of any Loan Party and any Lenderdocuments held in escrow, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required may, if such Escrow Agent so elects, interplead the matter by filing an interpleader action in a court of competent jurisdiction in the county or circuit where the Real Property is located (to determine if any Person has complied with the jurisdiction of which both parties do hereby consent), and pay into the registry of the court such monies held by Escrow Agent, or deposit any such agreementsdocuments with respect to which there is a dispute in the registry of such court, nor shall any additional obligations of the whereupon such Escrow Agent shall be inferred relieved and released from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The any further liability as Escrow Agent may rely upon and hereunder. Escrow Agent shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection compliance with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstandinglegal process, in no event shall the Escrow Agent be liablesubpoena, directly or indirectlywrit, for any (x) damagesorder, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage judgment and decree of any kind whatsoever (including lost profits)court, even if the Escrow Agent has been advised of the likelihood of such loss whether issued with or damage and regardless of the form of action. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Accountwithout jurisdiction, and including interest and penalties thereonwhether or not subsequently vacated, modified, set aside or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21reversed.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Moody National REIT II, Inc.)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless sole responsibility of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain to deposit the Earnest Money Deposit in an accouxx xxx documents necessary to do so and to disburse said funds according to the terms of this Agreement. In the event of a breach of this Agreement by either Seller or Buyer, or if, in the sole discretion of the Escrow Agent, some doubt exists as to its duties when, to whom or rights hereunder or under what circumstances such Earnest Money Deposit shall receive instructionsbx xxxxursed hereunder, claims or demands and the parties hereto are unable after ten (10) days' prior written notice thereof from any Person whichEscrow Agent to agree and direct Escrow Agent, in its opinionwriting, conflict with any of as to when, to whom or under what circumstances Escrow Agent shall disburse the provisions of this Section 2.21 or the Aleris Increase Joinder Amendmentsame, it Escrow Agent shall be entitled to refrain from taking interplead said Earnest Money Deposit into the Cixxxxx Xourt of Pinellas County, Florida, without further liability or responsibility on its part. Costs, expenses and attorneys' fees incurred by Escrow Agent in connection with any action and its sole obligation shall such interpleader may be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction deducted by Escrow Agent from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all amount of the Escrowed Amounts Earnest Money Deposit prior to itx xxxxxit into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any registry of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunderCourt. The In any event, however, all parties agree that Escrow Agent shall have no liability or obligation with respect any further responsibility to any party or person whomsoever for any disbursement of the Escrowed Amounts except for Earnest Money Deposit made by Esxxxx Xxent in good faith unless such disbursement shall constitute a willful breach of the duties and obligations of Escrow Agent under this Agreement or gross negligence on the part of Escrow Agent’s willful misconduct or gross negligence. To Buyer acknowledges that Escrow Agent is the extent practicable, the Loan Parties attorney for Seller and the Aleris Incremental Term Lenders agree to pursue any redress or recourse agrees that Escrow Agent may represent Seller in connection with any dispute (other than with respect arising under this Agreement notwithstanding such service as Escrow Agent under this Agreement. The interest received on the Earnest Money Deposit shall be xxxxxxx to a dispute involving the account of Buyer at closing. The Escrow Agent) without making Agent has executed the receipt attached to this Agreement to confirm that the Escrow Agent a party is holding and will hold and disburse funds paid in respect of the Purchase Price in escrow pursuant to the same. Anything in provisions of this Agreement or and as directed by the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it parties in the Escrow Account, and including interest and penalties thereon, or Settlement (iiClosing) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21Statement.
Appears in 1 contract
Samples: Mobile Home Park Purchase and Sale Agreement (Asset Investors Corp)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred hold the Deposit in escrow in an interest bearing account and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, disburse it in its capacity as Escrow Agent, with, accordance with the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lenderthis Contract. All interest earned on the Deposit shall belong to the Purchaser except in the event of a default entitling the Seller to the Deposit, in connection herewith which event the interest accrued thereon shall belong to the Seller. In the event it is in doubt as to its duties or otherwiseliabilities under this Contract, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required may, in its sole discretion, continue to determine if any Person has complied hold the Deposit until the parties mutually agree as to the disbursement thereof, or until the rights of the parties are determined in accordance with any the Contract, or it may deliver the Deposit then held pursuant to this Contract to the Clerk of the Circuit Court of Hillsborough County, Florida, and upon notifying all parties concerned of such agreementsdelivery, nor shall any additional obligations all liability on the part of the Escrow Agent be inferred from the terms of such agreementsshall fully cease and terminate, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable of accounting for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form monies theretofore delivered out of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees)escrow. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties between Purchaser and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making Seller wherein the Escrow Agent is made a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the if Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out interpleads the subject matter of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoingthis escrow, the Escrow Agent shall be entitled to deduct recover its attorneys' fees and costs incurred, said fees and costs to be charged and assessed against the non-prevailing party in any such Taxesdispute. All parties agree that the Escrow Agent shall not be liable to any party or person whomsoever for misdelivery to Purchaser or Seller of the Deposit, interest unless such misdelivery shall be due to willful breach of this Contract or gross negligence on the part of the Escrow Agent. Both Purchaser and penalties Seller, jointly and severally, agree to indemnify and hold Escrow Agent harmless from all expenses, costs and damages incurred by Escrow Agent in connection with or as a result of its acting as Escrow Agent herein but excepting only such costs, expenses and damages as result from the Escrowed Amounts prior willful breach or gross negligence of Escrow Agent. Both parties recognize and acknowledge that Escrow Agent has agreed to its release of the Escrowed Amounts in accordance with this Section 2.21serve as Escrow Agent only as a convenience to both parties.
Appears in 1 contract
Samples: Contract for Purchase and Sale (Family Steak Houses of Florida Inc)
Escrow Agent. The terms and conditions set forth in this Agreement shall constitute both an agreement between Seller and Buyer and instructions for Escrow Agent, which Escrow Agent shall acknowledge and agree to be bound by, as evidenced by its execution of this Agreement. Seller and Buyer shall promptly execute and deliver to Escrow Agent any separate or additional escrow instructions requested by Escrow Agent which are consistent with the terms of this Agreement. Any separate or additional instructions shall not modify or amend the provisions of this Agreement unless otherwise expressly agreed by mutual consent of Buyer and Seller. Buyer and Seller both hereby acknowledge and agree that Escrow Agent shall hold and deliver the Exxxxxx Money Deposit and all other deposits which may be made under this Agreement in accordance with the terms and conditions of this Agreement and that Escrow Agent shall be relieved of all liability and held harmless by both Seller and Buyer in the event Escrow Agent makes any disbursement of such monies in accordance with the terms and provisions of this Agreement. Escrow Agent shall be relieved from any responsibility or liability and held harmless by both Buyer and Seller in connection with the discharge of Escrow Agent’s duties hereunder provided that Escrow Agent exercises ordinary and reasonable care in the discharge of such duties. By their execution and delivery of this Agreement, the Buyer and Seller acknowledge and confirm that under certain circumstances deposits (including the funds subject to this Agreement) may not be insured or fully insured by the Federal Deposit Insurance Corporation (“FDIC”). Each party has made its own analysis of FDIC insurance regulations affecting, or potentially affecting, the funds subject to this Agreement and is not relying upon any advice from the Escrow Agent as to FDIC matters. The Buyer and Seller understand and agree that Escrow Agent is holding the escrow funds as agent and that the funds are not trust funds. Simultaneously with final disbursement of the escrow funds pursuant to this Agreement, Escrow Agent shall be released of all liability and responsibility under this Agreement. The Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine. Escrow Agent may assume that any person purporting to give any writing, notice, advice or instructions in connection with the provisions hereof, has been duly authorized to do so. The Escrow Agent undertakes and agrees to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be impliedherein. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent hereunder shall be inferred from the terms of such agreements, except limited to the extent such safe keeping of the escrow funds and the disposition of same in accordance with the provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or requesthereof. The Escrow Agent shall have no duty the right, but not the obligation, to solicit any payments from any Person which may be due require a written statement signed by the Buyer and Seller confirming satisfaction of all conditions precedent to it or in respect disbursement of the Escrowed Term Loansfunds hereunder and authorizing disbursement of said funds, together with accrued interest, if any. All notices to or any applicable fees (including arranger and commitment fees). In the event that the from Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands in writing. The Buyer and Seller hereby release Escrow Agent from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment losses incurred with respect to certain circumstances, and thereafter be fully relieved from any and all liability funds deposited hereunder by reason of the absence of or obligation insufficiency of FDIC insurance with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentfunds. The Buyer and Seller acknowledge that Escrow Agent has entered into this Agreement at their specific request and, in order to induce Escrow Agent to accept said escrow, do hereby agree to indemnify and hold Escrow Agent harmless from all loss, cost and expense, including reasonable attorneys’ fees and court costs, which it may consult suffer or incur as a result of acting as Escrow Agent under this Agreement, including, without limitation, claims arising with legal counsel respect to the absence or insufficiency of its selection in FDIC insurance for funds subject to this Agreement. In the event of any dispute or question as to the meaning disbursement of escrow funds or construction of any of the provisions hereof claim thereto by any party or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The person, Escrow Agent shall have no liability or obligation with respect the right to bring a suit in interpleader in the Escrowed Amounts except Circuit Court for Dxxxx County, Florida naming the parties to this Agreement and any other parties as may be appropriate in the opinion of Escrow Agent’s willful misconduct or gross negligence. To the extent practicableThe Buyer and Seller shall indemnify and hold harmless Escrow Agent from all costs, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse including attorneys’ fees, in connection with any dispute (other than with respect to a dispute involving such interpleader action. Upon the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out filing of said suit and deposit of the services provided hereunder or under balance of escrow funds in the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including lost profits), even if the Escrow Agent has been advised registry of the likelihood of such loss or damage and regardless of the form of action. Should the Escrow Agent become liable for (i) the payment of any TaxesCourt, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled have the right to deduct such Taxeswithdraw from said suit, interest and penalties from the Escrowed Amounts prior to its release all obligations of the Escrowed Amounts in accordance with this Section 2.21Escrow Agent shall cease and terminate.
Appears in 1 contract
Samples: Real Estate Sale Agreement (Phillips Edison - ARC Shopping Center REIT Inc.)
Escrow Agent. The Escrow Agent undertakes referred to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial definition ------------- thereof contained in nature, and no Paragraph 1.1 hereof has agreed to act as such for the convenience of the parties without fee or other duties shall be impliedcharges for such services as Escrow Agent. The Escrow Agent shall not be subject liable: (a) to any fiduciary of the parties for any act or omission to act except for its own willful misconduct; (b) for any legal effect, insufficiency, or undesirability of any instrument deposited with or delivered by Escrow Agent or exchange by the parties hereunder, whether or not Escrow Agent prepared such instrument; (c) for any loss or impairment of funds that have been deposited in escrow while those funds are in the course of collection, or while those funds are on deposit in a financial institution, if such loss or impairment results from the failure, insolvency or suspension of a financial institution; (d) for the expiration of any time limit or other implied dutiesconsequence of delay, regardless of whether unless a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible forproperly executed written instruction, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as accepted by Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall has instructed the Escrow Agent be required to determine if any Person has complied comply with any such agreementssaid time limit; (e) for the default, nor shall any additional obligations error, action or omission of the Escrow Agent be inferred from the terms of such agreements, except either party to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendmentescrow. The Escrow Agent shall be under no duty entitled to inquire 1060441.101066947.03-CHISR01A - MSW into rely on any document or investigate the validitypaper received by it, accuracy or content of any believed by such documentEscrow Agent, noticein good faith, instruction or requestto be bona fide and genuine. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees)is counsel for Purchaser. In the event It is agreed that the Escrow Agent shall not be uncertain disqualified from representing either party in connection with any litigation which might arise out or in connection with this Agreement, merely by virtue of the fact that such Escrow Agent has agreed to act as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person whichEscrow Agent hereunder. Further, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the that event of any dispute or question as to the meaning or construction of any disposition of the provisions hereof Deposit or under any other monies held in escrow, the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent may, if such Escrow Agent so elects, interplead the parties by filing an interpleader action in any court having subject matter jurisdiction of such a matter (to the personal jurisdiction of which both parties do hereby consent), and pay into the registry of the court the Deposit and any other monies held in escrow, including all interest earned thereon, whereupon such Escrow Agent shall have no be relieved and released from any further liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the as Escrow Agent a party to hereunder. In the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of interpleader action. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall not be entitled to deduct such Taxesdisabled from representing a party hereto. Escrow Agent shall not be liable for Escrow Agent's compliance with any legal process, interest subpoena, writs, orders, judgments and penalties from the Escrowed Amounts prior to its release decree of the Escrowed Amounts in accordance any court, whether issued with this Section 2.21or without jurisdiction, and whether or not subsequently vacated, modified, set aside or reversed.
Appears in 1 contract
Escrow Agent. The In performing Escrow Agent undertakes to perform only such Agent’s duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendmenthereunder, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject incur any liability to any fiduciary party for any damages, losses or other implied dutiesexpenses, regardless except for willful default or breach of whether a Default has occurred trust, and is continuing. The Escrow Agent shall accordingly not have incur any duty such liability with respect to take any discretionary action taken or exercise omitted in reliance upon any discretionary powers. The written instrument, including any written notice, election, demand, request or response thereto contemplated, permitted or required to be delivered under this Agreement (collectively, a “Notice”), not only as to the due execution and the validity and effectiveness of the provisions of the Notice but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it good faith believe to be genuine and genuine, to have been signed and or presented by a proper person or persons and to conform with the Designated Companyprovisions of this Agreement. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent is hereby authorized signers’ forms to refuse to act except upon the written consent of both Seller and Purchaser. As to their own acts and omissions, Seller and Purchaser each indemnify and hold harmless (“Indemnify”) Escrow Agent from and against all claims, damages, liabilities and expenses, including, without limitation, costs of investigation and attorney’s fees, disbursements and expenses at both the trial and appellate levels (the “Indemnity”), which may be imposed upon Escrow Agent or incurred by Escrow Agent in connection with the performance of the duties of Escrow Agent hereunder; provided however, that in the form event that Escrow Agent shall willfully default or be grossly negligent in the performance of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent’s duties under this Agreement, then in such event Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, all such claims and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21damages.
Appears in 1 contract
Samples: Escrow Agreement (Excelsior Lasalle Property Fund Inc)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 All fees and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations expenses of the Escrow Agent be inferred from incurred in the terms ordinary course of such agreements, except performing its responsibilities hereunder with respect to the extent such provisions are repeated Escrow Amount will be paid by Acquiror upon receipt of a written invoice by the Escrow Agent. Any extraordinary fees and expenses, including without limitation any fees or expenses incurred by the Escrow Agent in this Section 2.21 connection with a dispute over the distribution of the Escrow Amount or the validity of a claim or claims by Acquiror made in an Officer’s Certificate, will be paid 50% by Acquiror and 50% by the Stockholders (in the Aleris Increase Joinder Amendmentcase of the Stockholders, through a deduction to the Escrow Fund). The Stockholders’ liability for the extraordinary fees and expenses of the Escrow Agent may rely upon be paid by Acquiror and shall not be liable for acting or refraining from acting upon any recovered as a claim hereunder out of the Escrow Drawdown Request furnished to it hereunder Amount. If Acquiror has paid the portion of such fees and reasonably believed by it to be genuine and to have been signed and presented by expenses as permitted under this Section 5(a) of the Designated Company. On the Aleris Increase Joinder Effective DateStockholders, the Designated Company shall deliver to then the Escrow Agent authorized signers’ forms in the form of Exhibit A will, upon demand by Acquiror, transfer to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect Acquiror a portion of the Escrowed Term Loans, interest, or any applicable Escrow Amount equal to such portion of fees (including arranger and commitment fees)expenses in Escrow Cash. In the event that the balance in the Escrow Amount is not sufficient to pay the Stockholders’ portion of such extraordinary fees and expenses of the Escrow Agent, or in the event the Escrow Agent shall be uncertain as incurs any liability to any person, firm or corporation by reason of its duties acceptance or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions administration of this Section 2.21 or the Aleris Increase Joinder AmendmentAgreement, it shall be entitled Acquiror agrees to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse indemnify the Escrow Agent for such Taxesextraordinary fees and expenses or costs and expenses, interestincluding, penalties without limitation, counsel fees and other amounts upon demandexpenses, as the case may be. Without limiting Notwithstanding the foregoing, no indemnity need be paid in the event of the Escrow Agent shall be entitled to deduct such TaxesAgent’s gross negligence, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21bad faith or willful misconduct.
Appears in 1 contract
Samples: Escrow Agreement
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21.
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Escrow Agent. The Escrow Agent undertakes agrees by acceptance of the monies to perform only be deposited with it (the “Escrow Funds”) to hold the same in escrow and to disburse such duties as are expressly set forth monies in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, accordance with the terms and conditions of any other agreementthis Agreement. In the event of a dispute between Purchaser and Seller as to the duties or liabilities under the provisions of this Agreement, instrument or document between or among any Loan Party and any LenderEscrow Agent may, in connection herewith its sole discretion, continue to hold the monies which are subject to this escrow until the parties mutually agree to the disbursement thereof or otherwiseuntil final judgment of a court of competent jurisdiction binding the parties thereto, including any other Loan Document and including or it may deposit all the Aleris Merger Agreementmonies then held pursuant to this Agreement with the Clerk of the Circuit Court of Palm Beach County and, nor shall upon notifying all parties concerned of such action, all liability on the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations part of the Escrow Agent be inferred from the terms of such agreementsshall fully cease and terminate, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable of accounting for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form monies theretofore delivered out of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees)escrow. In the event that of any suit between Purchaser and Seller wherein the Escrow Agent shall be uncertain is made a party by virtue of acting as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction hereunder, or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making suit wherein the Escrow Agent a party to interpleads the same. Anything in subject matter of this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoingescrow, the Escrow Agent shall be entitled to deduct such Taxes, interest recover reasonable attorneys’ fees and penalties court costs to be paid from the Escrowed Amounts prior to its release Escrow Funds, but chargeable as costs in favor of the Escrowed Amounts prevailing party. All parties agree that the Escrow Agent shall not be liable to any party or person whomsoever for misdelivery of monies subject to this escrow to Purchaser or Seller unless such misdelivery shall be due to willful breach of this Agreement or gross negligence on the part of the Escrow Agent. The parties expressly recognize that Escrow Agent is the attorney for the Seller and both parties agree that such representation will continue through this transaction, and may further continue subsequent to the Closing. Purchaser acknowledges that Escrow Agent may represent the Seller for all matters related to this transaction, including, but not limited to, any litigation arising herein and that such duties as Escrow Agent shall not disqualify Seller’s attorney from representing Seller in accordance with this Section 2.21such matters.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow 1087312.03B-CHISR01A1209777.02-CHISR02A - MSW Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21.
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Escrow Agent. The Escrow Agent undertakes shall be Commonwealth Land Title Insurance Company, c/o New York Land Services, Attention: Xxxxxx Xxxx. Any funds (including, without limitation, the Deposit), documents or other property delivered to perform only such duties as Escrow Agent pursuant to this Agreement shall be held by Escrow Agent in trust. Buyer acknowledges that the sub-account into which funds are expressly set forth in this Section 2.21 to be deposited cannot be established without Buyer furnishing Escrow Agent with an executed original Form W-9. Buyer represents and warrants to Escrow Agent that its Federal Taxpayer Identification Number is the number provided in the Aleris Increase Joinder AmendmentForm W-9 delivered to Escrow Agent. References to the Deposit or any other funds delivered to Escrow Agent hereunder shall include any and all interest accrued thereon. Seller and Buyer acknowledge that Escrow Agent, which as the escrow agent, has no duties or responsibilities hereunder other than to hold any funds, documents or other property deposited with it pursuant to this Agreement. In the event of any dispute regarding any action taken, or proposed to be taken, by Escrow Agent with respect to any funds, documents or other property held by Escrow Agent pursuant to this Agreement or if any dispute arises with respect to this Agreement and Escrow Agent’s duties hereunder, whether such dispute arises between the parties hereto or between the parties hereto and other persons, Escrow Agent, in its sole discretion, may cause such funds, documents and other property to be placed into the registry of a court of competent jurisdiction pursuant to an action of interpleader commenced by Escrow Agent, and Seller and Buyer, jointly and severally, agree to pay directly, or reimburse Escrow Agent for, any and all expenses so incurred by Escrow Agent, including, but not limited to, any reasonable attorneys’ fees incurred by Escrow Agent in any such action; provided, that one-half of any such fees and expenses shall be deemed paid by Seller and one-half shall be paid by Buyer. Seller and Buyer acknowledge that Escrow Agent’s duties are purely ministerial in nature, nature and no other duties shall be implied. The that Escrow Agent is acting hereunder solely as a stakeholder and at the request of the Parties and as a convenience to the Parties and that Escrow Agent shall not be subject deemed to be the agent of any fiduciary or other implied duties, regardless of whether a Default has occurred the Parties and is continuing. The that Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting (i) any loss, cost or refraining from acting upon damage which it may incur as a result of serving as escrow agent hereunder, except for any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Dateloss, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into cost or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel damage arising out of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To negligence or failure to comply with the extent practicableterms of this Agreement, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunderaction taken or omitted to be taken in reliance upon any document, including any written instructions provided for in this Agreement, which Escrow Agent shall in good faith believe to be genuine, (iii) the Loan Parties agreeexpiration of any time limit or other delay that is not caused by the failure of Escrow Agent to proceed in its ordinary course of business, and in no event where such time limit is not disclosed to Escrow Agent, and (iv) any loss or impairment resulting from the failure, insolvency or suspension of the financial institution at which any funds have been deposited. Buyer and Seller acknowledge that they are aware that the Federal Deposit Insurance Corporation (FDIC) coverage applies only to a cumulative maximum amount for each individual depositor for all of such depositor’s accounts at the same or related institution. Buyer and Seller are further aware that Escrow Agent is not responsible for levies by taxing authorities based upon the taxpayer identification number used to establish the interest-bearing account for the Deposit. Seller and Buyer, jointly and severally, do hereby agree to reimburse indemnify and hold harmless Escrow Agent of and from any and all liabilities, costs, expenses, and claims, of any nature whatsoever, by reason of or arising out of the acting as escrow agent hereunder by the named Escrow Agent; provided, that one-half of any such costs or expenses shall be paid by Seller and one-half shall be paid by Buyer. If for any reason the Closing does not occur and any Party makes a written or oral demand upon Escrow Agent for delivery to it of any funds being held by it, Escrow Agent shall give written notice to the other Party of such Taxes, interest, penalties and other amounts upon demand. Without limiting If Escrow Agent does not receive a written objection from the foregoingnon‑demanding Party to the proposed delivery of the funds within three (3) Business Days after the giving of such notice, Escrow Agent is authorized, instructed and directed to make such delivery. If Escrow Agent does receive such written objection within such three (3) Business Day period, Escrow Agent shall continue to hold the funds until otherwise directed by written instructions from the Parties or a final judgment of a court of competent jurisdiction. Escrow Agent shall have the right at any time to deposit the funds with any court having appropriate jurisdiction over the subject matter of this Agreement. Escrow Agent shall give written notice of any such deposit to the Parties. Upon any such deposit, Escrow Agent shall be entitled to deduct such Taxes, interest relieved and penalties from the Escrowed Amounts prior to its release discharged of the Escrowed Amounts in accordance with this Section 2.21all further obligations and responsibilities hereunder.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Steadfast Apartment REIT, Inc.)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary hold all deposits or other implied dutiessums delivered in escrow in connection with this Agreement (collectively the “Escrow Funds”), regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have if any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to complyare delivered, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon an XXXX account and shall not be liable to anyone for acting any damages, loss or refraining from acting upon expense incurred as a result of any act or omission of Escrow Drawdown Request furnished to it hereunder Agent, unless such damage, loss or expense is caused by Escrow Agent’s willful misconduct, gross negligence, or fraud. Accordingly, and reasonably believed by it to be genuine and to have been signed and presented by without limiting the Designated Company. On the Aleris Increase Joinder Effective Dateforegoing, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of not incur any such documentliability with respect to: (i) any action taken or omitted; or (ii) any action taken or omitted in reasonable reliance upon any instrument, noticeincluding any written notice or instruction provided for herein, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain not only as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action due execution by an authorized person and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction validity and effectiveness of such instrument, but also as to the truth and accuracy of any of the provisions hereof information contained therein. Should any issue or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow dispute arise, Xxxxxx Agent shall have no liability or obligation with respect to the Escrowed Amounts except any Party hereto for retaining dominion and control over the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including lost profits), even if the Escrow Agent has been advised of the likelihood of Funds until such loss or damage and regardless of the form of action. Should the Escrow Agent become liable for issue is resolved by: (i) mutual agreement of the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, Parties; or (ii) final order, decree or judgment by a court of competent jurisdiction. In no event shall Escrow Agent be under any payment made hereunder, the Loan duty whatsoever to institute or defend such proceeding. The Parties agree, jointly and severally, to reimburse indemnify and hold harmless Escrow Agent from and against any and all costs, loss, damage, disbursement, liability, and expense, including reasonable attorneys’ fees and costs, which may be imposed upon or incurred by Escrow Agent hereunder, or in connection with the performance of its duties hereunder, including any litigation arising out of this escrow, or involving the subject matter hereof, except only costs, losses, claims, damages, disbursements, liabilities and expenses arising out of Escrow Agent’s acts or omissions for which the Escrow Agent for such Taxesis adjudicated of having acted with willful misconduct, interestgross negligence, penalties and other amounts upon demandor fraud by a final decree, order or judgment of a court of competent jurisdiction from which no appeal is taken within the applicable appeals period. Without limiting the foregoing, At no time shall the Escrow Funds be the property of Escrow Agent. Escrow Agent shall be entitled is a party to deduct such Taxes, interest and penalties from this Agreement solely with respect to the Escrowed Amounts prior provisions relating to its release of the Escrowed Amounts in accordance with this Section 2.21Escrow Funds.
Appears in 1 contract
Samples: Access Agreement
Escrow Agent. The Escrow Agent undertakes referred to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial definition thereof contained in nature, and no Section 1.1 of this Agreement has agreed to act as such for the convenience of the Parties without fee or other duties shall be impliedcharges for such services as Escrow Agent. The Escrow Agent shall not be subject liable: (a) to any fiduciary of the Parties for any act or omission to act except for its own willful misconduct or gross negligence; (b) for any legal effect, insufficiency, or undesirability of any instrument deposited with or delivered by Escrow Agent or exchanged by the Parties hereunder, whether or not Escrow Agent prepared such instrument; (c) for any loss or impairment of funds that have been deposited in escrow while those funds are in the course of collection, or while those funds are on deposit in a financial institution, if such loss or impairment results from the failure, insolvency or suspension of a financial institution; (d) for the expiration of any time limit or other implied dutiesconsequence of delay, regardless of whether unless a Default properly executed written instruction, accepted by Escrow Agent, has occurred and is continuing. The instructed Escrow Agent shall not have any duty to take any discretionary comply with said time limit; (e) for the default, error, action or exercise any discretionary powersomission of either Party to the escrow. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to complyAgent, in its capacity as escrow agent, shall be entitled to rely on any document or paper received by it, believed by such Escrow Agent, within good faith, to be bona fide and genuine. In the terms and conditions event of any other agreement, instrument dispute as to the disposition of the Deposit or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreementmonies held in escrow, nor shall the or of any documents held in escrow, Escrow Agent be required may, if such Escrow Agent so elects, interplead the matter by filing an interpleader action in a court of general jurisdiction in the county or circuit where the Real Property is located (to determine if any Person has complied with the jurisdiction of which both Parties do by this Agreement consent), and pay into the registry of the court the Deposit, or deposit any such agreementsdocuments with respect to which there is a dispute in the registry of such court, nor shall any additional obligations of the whereupon such Escrow Agent shall be inferred relieved and released from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The any further liability as Escrow Agent may rely upon and hereunder. Escrow Agent shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection compliance with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstandinglegal process, in no event shall the Escrow Agent be liablesubpoena, directly or indirectlywrit, for any (x) damagesorder, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage judgment and decree of any kind whatsoever (including lost profits)court, even if the Escrow Agent has been advised of the likelihood of such loss whether issued with or damage and regardless of the form of action. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Accountwithout jurisdiction, and including interest and penalties thereonwhether or not subsequently vacated, modified, set aside or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21reversed.
Appears in 1 contract
Samples: Combined Contribution and Purchase and Sale Agreement (Ashford Hospitality Trust Inc)
Escrow Agent. The Escrow Agent undertakes under this Agreement shall be Beach Abstract and Guaranty Company, or such other person or entity appointed by joint written instructions of Purchaser and Seller (the “Escrow Agent”). The Purchaser and Seller shall have the right to perform only such duties as are expressly set forth in this Section 2.21 remove any then appointed Escrow Agent and appoint a successor by written notice signed by Purchaser and Seller, and in such event the Aleris Increase Joinder Amendment, which funds held in escrow shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject promptly delivered to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as such successor Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver Any funds delivered to the Escrow Agent authorized signers’ forms pursuant to this Agreement shall be held by said Escrow Agent in trust and shall be deposited in an interest bearing account or certificate of deposit maintained with or issued by a federally insured commercial or savings bank (or other financial institution mutually acceptable to Purchaser and Seller). All interest earned on the form Deposit shall be for the account of Exhibit A the Purchaser and assigned to Purchaser’s tax identification number, unless the Aleris Increase Joinder AmendmentDeposit is paid to Seller by reason of Purchaser’s default, as provided herein, in which case all interest earned thereon shall also be paid to Seller in accordance with Section 11 of this Agreement. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content execution of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that this Agreement by the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any is solely for purposes of evidencing the acknowledgment by said Escrow Agent of the provisions receipt by it of the Deposit specified in Section 2 hereinabove and the terms of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders15. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in In the event of any dispute regarding any action taken, or question as proposed to be taken, by the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicableDeposit, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereonit, or (ii) any payment made hereunderdocuments, the Loan Parties agree, jointly and severally, to reimburse agreements and/or property held by the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting pursuant to this Agreement (collectively the foregoing“Escrow”), the Escrow Agent shall be entitled to deduct such TaxesAgent, interest and penalties from the Escrowed Amounts prior to in its release of the Escrowed Amounts in accordance with this Section 2.21.sole discretion, may:
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Paladin Realty Income Properties Inc)
Escrow Agent. The Escrow Agent undertakes to perform only such duties hereby accepts its designation as are expressly set forth in this Section 2.21 and in Escrow Agent hereunder, acknowledges receipt of the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in naturefull amount of Xxxxxxx Money, and no other duties shall be impliedagrees to hold and disburse the Xxxxxxx Money as herein provided. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and A gent shall not be liable for acting any acts taken in good faith, shall only be liable for its willful default or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interestaction, or gross negligence, and may, in its sole discretion, rely on good faith upon the written notices, communications, orders or instructions given by any applicable fees (including arranger and commitment fees)party hereto. In the event that of a dispute between Purchaser and Seller under this Agreement sufficient in the discretion of Escrow Agent shall be uncertain as to justify its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lendersdoing so. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct tender into the registry or custody of any court of competent jurisdiction the Xxxxxxx Money, and all other money or property in its hands under the terms of this Agreement, together with such Taxeslegal proceedings as it deems appropriate, interest and penalties thereupon be discharged from all further duties under this Agreement. Seller and Purchaser hereby agree to indemnify and hold harmless Escrow Agent against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and counsel fees and disbursements which may be incurred by Escrow Agent in connection with its acceptance of this appointment as Escrow Agent or the performance of its duties hereunder, including, without limitation, any litigation arising from this Agreement or involving the subject matter hereof; provided, however, that if the matter in question arises from the Escrowed Amounts prior to its release negligence or willful act of Escrow Agent, then Escrow Agent shall bear all such losses, claims, damages, and expenses. In the event Escrow Agent places in the registry or custody of any court of competent jurisdiction the Xxxxxxx Money, it shall request that said funds be placed in intersest bearing form for the benefit of the Escrowed Amounts in accordance with this Section 2.21party entitled thereto, and such interest will be paid to the party entitled to receive the Xxxxxxx Money.
Appears in 1 contract
Samples: Real Estate Sales Contract (Cornerstone Realty Income Trust Inc)
Escrow Agent. The Clark, Campbell, Lancaster & Xxxxxx, P.A. is hereby designated as Escrow Agent undertakes for the transaction contemplated herein. Within three (3) business days after the Effective Date, Buyer shall deliver to perform only such duties as are expressly set forth in this Section 2.21 Escrow Agent the Xxxxxxx Money Deposit to be applied against the Purchase Price at the Closing and in the Aleris Increase Joinder Amendment, which Xxxxxxx Money Deposit shall be deemed purely ministerial payable to Clark, Campbell, Lancaster & Xxxxxx, P.A. Trust Account. Upon receipt of the Xxxxxxx Money Deposit, Escrow Agent shall deposit the Xxxxxxx Money Deposit in naturea non-interest bearing account in a federally insured financial institution. Buyer and Seller authorize Escrow Agent to act as Escrow Agent to receive funds and other items, including, without limitation, the Closing documents, and, subject to clearance, disburse them in accordance with the terms of this Contract. If Escrow Agent receives conflicting demands and no other has a good faith doubt as to Escrow Agent’s duties or liabilities under this Contract, it shall deposit the subject matter of the escrow with the clerk of the circuit court having jurisdiction over the dispute. Upon notifying the parties of such action, Escrow Agent shall be impliedreleased from all liability except for the duty to account for items previously delivered out of escrow. In any suit or arbitration in which Escrow Agent is made a party because of acting as agent hereunder or interpleads the subject matter of the escrow, Escrow Agent shall recover reasonable attorneys’ fees and costs from the non-prevailing party, with such fees and costs to be paid from the escrowed funds or equivalent and charged and awarded as court or other costs in favor of the prevailing party. The parties agree that Escrow Agent shall not be subject liable to any fiduciary person for misdelivery to Buyer or other implied dutiesSeller of escrowed items, regardless so long as such misdelivery is done in good faith and with the exercise of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent’s best judgment, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be unless misdelivery is due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct breach of this Contract or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders The parties agree that Escrow Agent is entitled to pursue any redress or recourse represent Seller in connection with the transaction contemplated herein or any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in that may arise between Buyer and Seller concerning this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21transaction.
Appears in 1 contract
Samples: www.higgenbotham.com
Escrow Agent. The Escrow Agent undertakes shall be Commonwealth Land Title Insurance Company. Any funds (including the Deposit), documents or other property delivered to perform only such duties as the Escrow Agent pursuant to this Agreement shall be held by the Escrow Agent. Any and all interest, dividends, gains or other income earned with respect to the Deposit shall be paid to the party entitled to the Deposit under the terms of this Agreement. The Buyer acknowledges that the account into which funds are expressly set forth in this Section 2.21 to be deposited cannot be established without the Buyer furnishing the Escrow Agent with an executed original Form W-9, which the Buyer shall furnish concurrently herewith. The Buyer represents and warrants to the Escrow Agent that its Federal Taxpayer Identification Number is the number provided in the Aleris Increase Joinder Amendment, which Form W-9 delivered to the Escrow Agent. References to the Deposit or any other funds delivered to the Escrow Agent hereunder shall be deemed include any and all interest accrued thereon. The Seller and the Buyer acknowledge that the duties of the Escrow Agent are purely ministerial in naturenature and that the Escrow Agent is acting as an accommodation to both of the Buyer and the Seller. In the event of any dispute regarding any action taken, or proposed to be taken, by the Escrow Agent with respect to any funds, or if any dispute arises with respect to this Agreement, whether such dispute arises between the parties hereto or between the parties hereto and no other duties Persons, the Escrow Agent is authorized to interplead such dispute in a court of competent jurisdiction and the Seller and the Buyer agree that all attorney’s fees and costs and the Escrow Agent’s costs and expenses incurred in connection with such interpleader shall be impliedborne jointly and severally by the Seller and the Buyer, provided, however, that, as between the Seller and the Buyer, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement by the losing party of any such costs, expenses and attorney’s fees paid to, or on behalf of, the Escrow Agent. The Seller and the Buyer acknowledge that the Escrow Agent is acting hereunder solely at the request of the parties and as a convenience to the parties and that the Escrow Agent shall not be subject deemed to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions agent of any other agreement, instrument or document between or among any Loan Party of the parties and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall that the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting (a) any loss, cost or refraining from acting upon any Escrow Drawdown Request furnished to damage which it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to may incur solely as a result of serving as the Escrow Agent authorized signers’ forms hereunder, except for any loss, cost or damage arising out of its willful misconduct or gross negligence or failure to comply with its obligations set forth in this Agreement or the form of Exhibit A Escrow Agreement, (b) any action taken or omitted to be taken in reliance upon any document, including any written instructions delivered jointly by the Aleris Increase Joinder Amendment. The Buyer and the Seller as provided for in this Agreement, which the Escrow Agent shall in good faith believe to be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into genuine, and (c) any loss or investigate impairment resulting from the validityfailure, accuracy insolvency or content suspension of the financial institution at which any such document, notice, instruction or requestfunds have been deposited. The Escrow Agent shall have no duty Seller and the Buyer acknowledge that they are aware that the Federal Deposit Insurance Corporation (FDIC) coverage applies only to solicit any payments from any Person which may be due to it a cumulative maximum amount for each individual depositor for all of depositor’s accounts at the same or in respect of related institution. The Seller and the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event Buyer are further aware that the Escrow Agent shall be uncertain as is not responsible for levies by taxing authorities based upon the taxpayer identification number used to its duties or rights hereunder or shall receive instructionsestablish this interest bearing account. The Seller and the Buyer, claims or demands jointly and severally, do hereby agree to indemnify and hold harmless the Escrow Agent of and from any Person whichand all liabilities, in its opinioncosts, conflict with expenses, and claims, of any nature whatsoever, by reason of or arising out of the provisions of this Section 2.21 or acting as escrow agent hereunder by the Aleris Increase Joinder Amendmentnamed Escrow Agent, it with such liabilities, costs, expenses and claims being borne jointly and severally by the Seller and the Buyer, provided, however, that, as between the Seller and the Buyer, the prevailing party in any dispute shall be entitled to refrain from taking reimbursement by the losing party of any action such costs, expenses and its sole obligation shall be to keep safely attorney’s fees paid to, or on behalf of, the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for any liability, cost, expense or claim arising out of the Escrow Agent’s willful misconduct or gross negligencenegligence or failure to comply with the terms of this Agreement. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, If for any (x) damages, losses or expenses arising out of reason the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of Closing does not occur and any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse party makes a written demand upon the Escrow Agent for delivery to it of any funds being held by it, the Escrow Agent shall give written notice to the other parties of such Taxes, interest, penalties and other amounts upon demand. Without limiting If the foregoingEscrow Agent does not receive a written objection from the non‑demanding party or parties to the proposed delivery of the funds within five (5) Business Days after the giving of such notice, the Escrow Agent is authorized, instructed and directed to make such delivery. If the Escrow Agent does receive such written objection within such five (5) Business Day period, the Escrow Agent shall continue to hold the funds until otherwise directed by written instructions delivered jointly from the parties or a final judgment of a court of competent jurisdiction. The Escrow Agent shall have the right at any time to deposit the funds with the clerk of any court having appropriate jurisdiction over the subject matter of this Agreement. The Escrow Agent shall give written notice of any such deposit to the parties. Upon any such deposit, the Escrow Agent shall be entitled relieved and discharged of all further obligations and responsibilities hereunder. On or before the Closing, the Buyer and Seller shall pay Escrow Agent the sum of two thousand five hundred dollars ($2,500.00) (“Escrow Service Charge”), to deduct such Taxescover its expenses in connection with the opening, interest maintaining and penalties from the Escrowed Amounts prior to its release disbursing of the Escrowed Amounts in accordance with proceeds of the account holding the Deposit and the Holdback. Buyer and Seller shall each bear fifty percent (50%) of the Escrow Service Charge. In the event this Section 2.21Agreement is cancelled, Escrow Agent shall retain the Escrow Service Charge, plus any amounts due it for title insurance services actually rendered, and shall disburse the balance pursuant to the terms hereunder.
Appears in 1 contract
Samples: Share Purchase Agreement (NorthStar Real Estate Income II, Inc.)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly terms and conditions set forth in this Section 2.21 Agreement shall constitute both an agreement between Seller and in the Aleris Increase Joinder AmendmentBuyer and instructions for Escrow Agent, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall acknowledge and agree to be bound by, as evidenced by its execution of this Agreement. Seller and Buyer shall promptly execute and deliver to Escrow Agent any separate or additional escrow instructions requested by Escrow Agent which are consistent with the terms of this Agreement. Any separate or additional instructions shall not be subject to any fiduciary modify or other implied duties, regardless amend the provisions of whether a Default has occurred this Agreement unless otherwise expressly agreed by mutual consent of Buyer and is continuingSeller. The Buyer and Seller both hereby acknowledge and agree that Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither hold and deliver the Xxxxxxx Money Deposit and all other deposits which may be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, made under this Agreement in its capacity as Escrow Agent, with, accordance with the terms and conditions of any other agreement, instrument or document between or among any Loan Party this Agreement and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The that Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate relieved of all liability and held harmless by both Seller and Buyer in the validity, accuracy or content of any such document, notice, instruction or request. The event Escrow Agent shall have no duty to solicit makes any payments from any Person which may be due to it or disbursement of such monies in respect accordance with the terms and provisions of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees)this Agreement. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any responsibility or liability and all liability or obligation held harmless by both Buyer and Seller in connection with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The the discharge of Escrow Agent’s duties hereunder provided that Escrow Agent may consult with legal counsel exercises ordinary and reasonable care in the discharge of its selection in such duties. In the event of any dispute or question as to the meaning disbursement of escrow funds or construction any claim thereto by any party or person, Escrow Agent shall bring a suit in interpleader in the District Court for Tarrant County, Texas naming the parties to this Agreement and any other parties as may be appropriate in the opinion of any Escrow Agent. The Buyer and Seller shall indemnify and hold harmless Escrow Agent from all costs, including attorneys’ fees, in connection with such interpleader action. Upon the filing of said suit and deposit of the provisions hereof or under balance of escrow funds in the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The registry of the Court, Escrow Agent shall have no liability or obligation with respect the right to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result withdraw from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Accountsaid suit, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the all obligations of Escrow Agent shall be entitled to deduct such Taxes, interest cease and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21terminate.
Appears in 1 contract
Samples: Real Estate Sale Agreement (Hartman Short Term Income Properties XX, Inc.)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject deposit the Xxxxxxx Money Deposit and Extension Fee, if any, into an interest-bearing, money market account with a local bank upon execution and delivery of all forms (including a fully-executed IRS Form W-9) and necessary documents and to any fiduciary or other implied duties, regardless disburse said funds according to the terms of whether a Default has occurred and is continuingthis Agreement. The Escrow Agent shall not have any duty notify the parties hereto of the date of deposit, name of institution and current interest rate within five (5) days of the date of the deposit. In the event of a breach of this Agreement by either Seller or Buyer, or if, in the sole discretion of the Escrow Agent, some doubt exists as to take any discretionary action when, to whom or exercise any discretionary powers. The under what circumstances such Xxxxxxx Money Deposit and Extension Fee, if any, shall be disbursed hereunder, and the parties hereto are unable after ten (10) days' prior written notice thereof from Escrow Agent to agree and direct Escrow Agent, in writing, as to when, to whom or under what circumstances Escrow Agent shall neither be responsible fordisburse the same, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty entitled to inquire 1060441.101066947.03-CHISR01A - MSW interplead said Xxxxxxx Money Deposit into the Circuit Court of the county in which the Property is located, without further liability or investigate the validityresponsibility on its part. Costs, accuracy or content of expenses and attorneys' fees incurred by Escrow Agent in connection with any such document, notice, instruction or request. The interpleader may be deducted by Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect the amount of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees)Deposit prior to its deposit into the registry of the Court. In the event any event, however, all parties agree that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect any further responsibility to any party or person whomsoever for any disbursement of the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicableXxxxxxx Money Deposit and Extension Fee, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the if any, made by Escrow Agent in good faith unless such disbursement shall constitute a party to willful breach of the same. Anything in duties and obligations of Escrow Agent under this Agreement or gross negligence on the Aleris Increase Joinder Amendment part of Escrow Agent. The interest received on the Xxxxxxx Money Deposit and Extension Fee, if any, shall be applied to the contrary notwithstandingaccount of Buyer at closing. Upon disbursing the Xxxxxxx Money Deposit and Extension Fee, in no event shall the Escrow Agent be liableif any, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage provisions of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoingthis Agreement, the Escrow Agent shall be entitled released from all liability with respect to deduct the Xxxxxxx Money Deposit and Extension Fee, if any, except for an accounting thereof. The Buyer and Seller, jointly and severally, agree to pay directly, or reimburse the Escrow Agent for any and all expenses incurred by the Escrow Agent in any such Taxesaction. As between the Buyer and Seller, interest the non-prevailing party in any action pertaining to the Xxxxxxx Money Deposit and penalties from Extension fee, if any, shall be responsible for any and all expenses incurred by the Escrowed Amounts prior Escrow Agent on any such action. Both Buyer and Seller, hereby acknowledge that the Escrow Agent is acting solely as a fiduciary to its release of the Escrowed Amounts parties. Seller hereby expressly acknowledges that Escrow Agent also serves as counsel to Buyer in accordance connection with this Section 2.21Agreement and the transaction contemplated herein and Seller specifically acknowledges and agrees that the duties, as Escrow Agent, hereunder, shall not disqualify such law firm from presenting Buyer as Buyer's counsel in any matter which arises under or which is a result of this Agreement, including, without limitation, a dispute relating to the Xxxxxxx Money Deposit and Extension Fee, if any.
Appears in 1 contract
Samples: Recreational Vehicle Park Purchase and Sale Agreement (Manufactured Home Communities Inc)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. 1160381.015-CHISR02A - MSW Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21.
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject entitled to any fiduciary fees or other implied duties, regardless of whether a Default has occurred and is continuingcompensation for its services as the Escrow Agent hereunder. The sole responsibility of the Escrow Agent shall not have any duty be to take any discretionary action or exercise any discretionary powersdisburse the Earnxxx Xxxey in accordance with this Agreement and to account to Seller and to Purchaser for the Earnxxx Xxxey. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have no obligation or authority to determine the appropriateness of any requirements request for disbursements made pursuant to comply, this Agreement. Escrow Agent is hereby authorized and agrees by acceptance thereof to hold the Earnxxx Xxxey in its capacity as Escrow Agent, with, escrow and to disburse the Earnxxx Xxxey in accordance with the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger this Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain of doubt as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of liabilities under the provisions of this Section 2.21 Agreement, or if either Seller or Purchaser disputes in writing a claim by the Aleris Increase Joinder Amendmentother to the Earnxxx Xxxey, it shall be entitled to refrain from taking any action and the Escrow Agent may, in its sole obligation shall be discretion, continue to keep safely hold the Escrowed Amounts held Earnxxx Xxxey until the parties having an interest therein mutually agree in escrow writing to the disbursement thereof or until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all judgment of the Escrowed Amounts into a court of competent jurisdiction shall determine the rights of the parties thereto, or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult deposit the Earnxxx Xxxey then held pursuant to this Agreement with legal counsel the Clerk of its selection the Circuit Court of Orange County, Florida and upon notifying all parties concerned of such action, all liability on the part of Escrow Agent shall fully terminate except to the extent of accounting for any money delivered out of escrow. In the event of any suit wherein Escrow Agent is made a party by virtue of acting as such Escrow Agent hereunder, or in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The suit wherein Escrow Agent shall have no liability or obligation with respect to interpleads the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicablesubject matter of this escrow, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct recover reasonable attorney's fee and costs incurred. All parties agree that Escrow Agent shall not be liable to any party or person whomsoever for misdelivery to Seller or to Purchaser of money subject to this escrow, or for any act or omission on its part undertaken, unless such Taxesmisdelivery, act or omission shall be due to bad faith and in willful disregard of this Agreement, or due to negligence. In the event Escrow Agent returns the Earnxxx Xxxey to Purchaser, Escrow Agent shall provide concurrent written notice of such return to Seller. Escrow Agent shall not be responsible for assuring the rate of interest and penalties from to accrue on the Escrowed Amounts prior to its release Earnxxx Xxxey, for any fluctuation in the rate of interest accruing on the Earnxxx Xxxey, for any failures on the part of the Escrowed Amounts in accordance with this Section 2.21.depository bank, for the unavailability of deposit insurance on all or any portion of the Earnxxx Xxxey, or for any other matters beyond the direct and exclusive
Appears in 1 contract
Samples: Purchase and Sale Agreement (Ecc International Corp)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred hold the Deposit in escrow and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, disburse it in its capacity as Escrow Agent, with, accordance with the terms and conditions of any other agreement, instrument this Agreement. In the event it is in doubt as to its duties or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger liabilities under this Agreement, nor shall the Escrow Agent be required may, in its sole discretion, continue to determine if any Person has complied hold the Deposit until the parties mutually agree as to the disbursement thereof, or until the rights of the parties are determined in accordance with any the Contract, or it may deliver the Deposit then held pursuant to this Agreement to the Clerk of the Circuit Court of Xxxxx County, Florida, and upon notifying all parties concerned of such agreementsdelivery, nor shall any additional obligations all liability on the part of the Escrow Agent be inferred from the terms of such agreementsshall fully cease and terminate, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable of accounting for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form monies theretofore delivered out of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees)escrow. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties between Purchaser and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making Seller wherein the Escrow Agent is made a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the if Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out interpleads the subject matter of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoingthis escrow, the Escrow Agent shall be entitled to deduct recover its attorneys' fees and costs incurred, said fees and costs to be charged and assessed against the non-prevailing party in any such Taxesdispute, interest but, if not paid by the non-prevailing party then the prevailing party shall pay such fees and penalties costs with the right to recover from the Escrowed Amounts prior non-prevailing party for such payment. All parties agree that the Escrow Agent shall not be liable to its release any party or person whomsoever for misdelivery to Purchaser or Seller of the Escrowed Amounts Deposit, unless such misdelivery shall be due to willful breach of this Agreement or gross negligence on the part of the Escrow Agent. Both Purchaser and Seller, jointly and severally, agree to indemnify and hold Escrow Agent harmless from all expenses, costs and damages incurred by Escrow Agent in accordance connection with this Section 2.21or as a result of its acting as Escrow Agent herein but excepting only such costs, expenses and damages as result from the willful breach or gross negligence of Escrow Agent. Both parties recognize and acknowledge that Escrow Agent has agreed to serve as Escrow Agent only as a convenience to both parties.
Appears in 1 contract
Samples: Contract for Purchase and Sale (Family Steak Houses of Florida Inc)
Escrow Agent. Escrow Agent shall act as Escrow Agent and has executed this Agreement solely for the purpose of signifying its agreement to act as escrow agent under the terms of this Agreement. Escrow Agent is not a party to this Agreement. Escrow Agent’s duties, obligations and liabilities hereunder are solely limited to the functions as required of it as Escrow Agent to receive and disburse funds as required under this Agreement. In the event of doubt as to Escrow Agent’s duties or liabilities under this Agreement, Escrow Agent may, in Escrow Agent’s sole discretion, continue to hold the subject matter 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 parties thereto or Escrow Agent may deposit same with the Clerk of the Circuit Court having jurisdiction of the dispute, and upon notifying the parties concerned of such action, all liability on the part of Escrow Agent shall fully terminate, except to the extent of accounting for any items theretofore delivered out of escrow. In the event of any suit wherein Escrow Agent is made a party by virtue of acting as Escrow Agent hereunder, or in the event of any suit wherein Escrow Agent interpleads the subject matter of this escrow, Escrow Agent shall be entitled to recover reasonable attorneys’ fees and costs including reasonable attorneys’ fees and cost for post judgment proceedings, said fees and costs to be charged and assessed as court costs in favor of the prevailing party. All parties agree that Escrow Agent shall not be liable to any party or person whomsoever for mis-delivery to City or Manhattan Realty of items subject to this escrow, unless such mis-delivery shall be due to willful breach of this Agreement or gross negligence on the part of Escrow Agent. The parties agree that Escrow Agent may represent itself and may also represent Manhattan Realty with respect to this transaction and matters arising out of this transaction. The Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection from 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 mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its willfulness conduct or gross negligence, and Manhattan Realty and City agree to indemnify and hold the Escrow Agent harmless from any claims, demands, causes of action, liability, damages or judgments, including the cost of defending any action against it, together with any reasonable attorneys’ fees incurred therewith, in connection with Escrow Agent’s undertaking pursuant to the terms and conditions of the Agreement, unless such act or omission is a result of the willfulness conduct or gross negligence of the Escrow Agent. The Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, may assume the validity and accuracy of any statements or assertions contained in such writing or instrument, and may assume that any person purporting to give any writing, notice, advice or instruction in connection with the provisions of this Agreement have been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any written instructions delivered to it; the sufficiency of the title to the property to be conveyed; nor as to the identity, authority, or rights of any persons executing same. The duties of the Escrow Agent shall be limited to the safekeeping of the deposits and to disbursements of same in accordance with the written instructions described above. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in natureherein, and no other implied duties or obligations shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as read into this Agreement against the Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for Upon the Escrow Agent’s willful misconduct or gross negligence. To disbursing the extent practicable, deposit in accordance with the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoingprovisions hereof, the Escrow shall terminate as regards this Agreement, and Escrow Agent shall thereafter be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release released of the Escrowed Amounts all liability hereunder in accordance with this Section 2.21connection therewith.
Appears in 1 contract
Samples: Agreement for Purchase and Sale
Escrow Agent. The Escrow Agent undertakes is authorized, and agrees by acceptance of the Deposit, to perform only such duties as are expressly set forth deposit them promptly, hold same in escrow and, subject to clearance, disburse them in accordance with the terms and conditions of the Contract. Failure of Buyer’s funds to clear shall not excuse Buyer’s performance; provided, however, Buyer shall not be in default under this Section 2.21 and Contract in the Aleris Increase Joinder Amendmentevent that Escrow Agent, which due to no fault of Buyer, is delayed in providing funds to Seller on the date of Closing. If in doubt as to Escrow Agent’s duties or liabilities under the provisions of this Contract, the Escrow Agent may, at Escrow Agent’s option, continue to hold the subject matter of the escrow until the parties hereto agree to its disbursement or until a judgment of a court of competent jurisdiction shall determine the rights of the parties, or Escrow Agent may deposit same with the Clerk of the Circuit Court having jurisdiction of the dispute. An attorney who represents a party and also acts as Escrow Agent may represent such party in such action. Upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully terminate, except to the extent of accounting for any items previously delivered out of escrow. Any suit between Buyer and Seller wherein Escrow Agent is made a party because of acting as Escrow Agent hereunder, or in any suit wherein Escrow Agent interpleads the subject matter of the escrow, Escrow Agent shall recover reasonable attorneys’ fees and costs incurred with these amounts to be deemed purely ministerial paid from and out of the escrowed funds or equivalent and charged and awarded as court costs in nature, and no other duties shall be impliedfavor of the prevailing party. The Escrow Agent shall not be liable to any party or person for misdelivery to Buyer or Seller of items subject to any fiduciary or other implied dutiesthe escrow, regardless of whether a Default has occurred and unless such misdelivery is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any willful breach of the provisions of this Section 2.21 the Contract or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all gross negligence of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21.
Appears in 1 contract
Samples: Contract for Sale and Purchase (CTO Realty Growth, Inc.)
Escrow Agent. The Withheld Portion is for the purpose of (1) protecting Buyer in the event any of Seller’s Accounts Receivables are not collected; and (2) to pay claims that Seller is obligated to indemnify Buyer for under this Agreement. Six (6) months after Closing Buyer shall determine the difference, if any, between the amount of Accounts Receivable collected and the amount of Accounts Receivable purchased (the “Shortfall”). Buyer and Seller shall jointly communicate to Escrow Agent undertakes in writing the amount of the Shortfall, if any, due to perform only such duties as are expressly set forth in this Section 2.21 Buyer, and the balance of the Withheld Portion, if any, due to Seller (the “A/R Notice”). Buyer and Seller shall include in the Aleris Increase Joinder AmendmentA/R Notice if there is any pending claim for which Seller may be obligated to indemnify Buyer under this Agreement and if so, which shall be deemed purely ministerial in naturedetails regarding such claim(s). Upon receipt of the A/R Notice, and no other duties shall be implied. The Escrow Agent shall not be subject release (i) the Shortfall, if any, from escrow and remit to any fiduciary or other implied dutiesBuyer, regardless and (ii) the balance of whether the Withheld Portion, if any, from escrow and remit to Seller; provided that if there is a Default has occurred and is continuing. The pending indemnification claim specified in the A/R Notice, Escrow Agent shall not have any duty retain the amount of the Withheld Portion equal to take any discretionary action or exercise any discretionary powersthe indemnification claim (“Indemnity Amount”) and remit the balance of the Withheld Portion, if any, in accordance with the terms of the A/R Notice. The If there is a pending indemnification claim specified in the A/R Notice, Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, retain the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held Indemnity Amount in escrow until it shall be given a joint direction from the Loan Parties pending indemnification claim is finally resolved to the satisfaction of Buyer and Seller unless otherwise agreed in writing by the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into parties hereto or as ordered by a court of competent jurisdiction or may seek jurisdiction. Seller shall also receive the interest earned, if any, on the Withheld Portion. Following the Closing Date, in addition to Buyer’s obligations specified in Section 4.3(j) above, Buyer shall provide Seller with a declaratory judgment weekly schedule of payment collections by customer with respect to certain circumstances, and thereafter Accounts Receivables. Buyer will use its best efforts to collect all outstanding Accounts Receivables purchased from Seller pursuant to this Agreement provided Buyer shall not be fully relieved obligated to file a lawsuit or expend any money to collect same. All payments received from any and all liability or obligation with respect to a customer shall be applied by Buyer in order of the oldest Accounts Receivable of such interpleaded assets or any action or nonaction based on such declaratory judgmentcustomer’s Accounts Receivables. The Escrow Agent may consult Asset Purchase Price shall be reduced on a dollar for dollar basis by the amount of aggregate Seller’s Accounts Receivables purchased by Buyer but not collected as of six (6) months after the Closing. Throughout the six (6)-month period after the Closing Date, Seller shall have the right to communicate with legal counsel of its selection in the event of any dispute or question each customer regarding Accounts Receivables outstanding as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties Closing Date and the Aleris Incremental Term Lenders agree payment thereof to pursue any redress or recourse in connection Buyer. Seller shall promptly provide Buyer with any dispute (other than with respect copies of all written communications to a dispute involving customer. Buyer shall promptly provide Seller with copies of all written communications to a customer regarding such Accounts Receivables. Seller agrees that the Escrow Agent) without making the Escrow Agent a party Withheld Portion may also be used to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, offset any Damages incurred by Buyer for any (x) damages, losses or expenses arising out of the services provided hereunder or which Seller is indemnifying Buyer under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.216.1.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 All fees and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations expenses of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or incurred ------------ in the Aleris Increase Joinder Amendmentordinary course of performing its responsibilities hereunder will be paid by Durect upon receipt of a written invoice by the Escrow Agent. Any extraordinary fees and expenses, including without limitation any fees or expenses incurred by the Escrow Agent in connection with a dispute over the distribution of Escrow Shares and any Escrow Cash or the validity of a claim or claims by Durect made in an Officer's Certificate, will be paid 50% by Durect and 50% by the Holders. The Holders' liability for the extraordinary fees and expenses of the Escrow Agent may rely upon be paid by Durect and shall not be liable for acting or refraining from acting upon any recovered as a claim hereunder out of the Escrow Drawdown Request furnished to it hereunder Fund. If Durect has paid the Holders' portion of such fees and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to expenses as permitted under this Section 4(a) then the Escrow Agent authorized signers’ forms in the form will, upon demand by Durect, transfer to Durect a number of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interestShares having an aggregate Per Share Value equal to, or any applicable Escrow Cash equal to, such portion of fees (including arranger and commitment fees)expenses. In the event that the balance in the Escrow Fund is not sufficient to pay the extraordinary fees and expenses of the Escrow Agent, as described in the prior paragraph, or in the event the Escrow Agent shall be uncertain as incurs any liability to any person, firm or corporation by reason of its duties acceptance or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions administration of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicableAgreement, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute other parties hereto (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including lost profitsShareholders' Agents), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, agree to reimburse indemnify the Escrow Agent for such Taxesits extraordinary fees and expenses or costs and expenses, interestincluding, penalties without limitation, counsel fees and other amounts upon demandexpenses, as the case may be. Without limiting Notwithstanding the foregoing, no indemnity need be paid in the event of the Escrow Agent shall be entitled to deduct such TaxesAgent's gross negligence, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21bad faith or willful misconduct.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties hereby accepts its designation as are expressly set forth in this Section 2.21 and in Escrow Agent hereunder, acknowledges receipt of the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in natureXxxxxxx Money, and no other duties shall be impliedagrees to hold and disburse the Xxxxxxx Money as herein provided. The Escrow Agent shall not be subject to liable for any fiduciary acts taken in good faith, shall only be liable for its willful default or other implied dutiesaction, regardless of whether a Default has occurred or gross negligence, and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to complymay, in its capacity as Escrow Agentsole discretion, withrely in good faith upon the written notices, the terms and conditions of communications, orders or instructions given by any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees)party hereto. In the event that of a dispute between Purchaser and Seller under this Agreement sufficient in the discretion of Escrow Agent shall be uncertain as to justify its duties or rights hereunder or shall receive instructionsdoing so, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct tender into the registry or custody of any court of competent jurisdiction the Xxxxxxx Money, and all other money or property in its hands under the terms of this Agreement, together with the institution of such Taxeslegal proceedings as it deems appropriate, interest and penalties thereupon be discharged from all further duties under this Agreement. Except for failure to collect the Xxxxxxx Money, Seller and Purchaser hereby agree to indemnify and hold harmless Escrow Agent against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and counsel fees and disbursements which may be incurred by Escrow Agent in connection with its acceptance of this appointment as Escrow Agent or the performance of its duties hereunder, including, without limitation, any litigation arising from this Agreement or involving the subject matter hereof; provided, however, that if the matter in question arises from the Escrowed Amounts prior to its release negligence or willful act of Escrow Agent, then Escrow Agent shall bear all such losses, claims, damages and expenses. In the event Escrow Agent places in the registry or custody of any court of competent jurisdiction the Xxxxxxx Money, it shall request that said funds be placed in an interest bearing account for the benefit of the Escrowed Amounts in accordance with this Section 2.21party entitled thereto, and such interest will be paid to the party entitled to receive the Xxxxxxx Money.
Appears in 1 contract
Samples: Real Estate Sale and Purchase Agreement (Rainwire Partners Inc /De/)
Escrow Agent. The By signing the Escrow Agent’s Acknowledgement below, Escrow Agent undertakes hereby accepts its designation as escrow agent hereunder and agrees to perform only such duties hold and disburse the Xxxxxxx Money deposited with Escrow Agent as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be impliedherein provided. The A copy of any request for disbursement to Escrow Agent shall not also be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except sent to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees)other party hereunder. In the event a request for disbursement is made by either party (other than a request for disbursement as a result of Purchaser’s termination of the Agreement prior to the expiration of the Inspection Objection Period), both parties acknowledge and agree that Escrow Agent may withhold disbursement until the written consent of the other party is given, provided, however, that if such consent of the other party is not provided within ten (10) business days of such request for disbursement, then Escrow Agent shall be uncertain as to its duties either disburse such funds or rights hereunder tender such funds into the registry or shall receive instructions, claims or demands from custody of any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment in accordance with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentthe provisions below. The Escrow Agent may consult with legal counsel of its selection in In the event of any a dispute or question as to between Purchaser and Seller under this Agreement sufficient in the meaning or construction discretion of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicablejustify its doing so, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct tender into the registry or custody of any court of competent jurisdiction all money or property in its hands under the terms of this Agreement, together with such Taxeslegal proceedings as it deems appropriate, interest and penalties thereupon to be discharged from all further duties as Escrow Agent under this Agreement. Any such legal action may be brought in any such court as Escrow Agent shall determine to have jurisdiction thereof. Escrow Agent shall not be liable for any acts taken in good faith, shall only be liable for its willful default or gross negligence, and may, in its sole discretion, rely upon the Escrowed Amounts prior oral or written notices, communications orders or instructions given by Purchaser or Seller. Seller and Purchaser hereby agree to indemnify and hold harmless Escrow Agent against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and counsel fees and disbursements which may be imposed upon Escrow Agent or incurred by it in connection with its release acceptance of this appointment as Escrow Agent hereunder or the performance of its duties hereunder, including, without limitation, any litigation arising from this Agreement or involving the subject matter hereof; provided, however, that if Escrow Agent shall be found guilty of willful default or gross negligence under this Agreement, then, in such event, Escrow Agent shall bear all such losses, claims, damages and expenses; and provided further that neither Seller nor Purchaser shall have any liability to Escrow Agent under this indemnity provision for any cost of litigation incurred by Escrow Agent, including, without limitation, attorney’s fees, arising or caused solely by the conduct of the Escrowed Amounts other party which results in accordance with this Section 2.21a dispute solely between the other party and Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow Agent. The execution of this Agreement by Escrow Agent undertakes is solely for the purpose of evidencing the acknowledgment by Escrow Agent of the receipt of the Escrow Fund and setting forth Escrow Agent's obligations with respect to perform only the Escrow Fund. Seller and Buyer acknowledge that Escrow Agent has no duties or responsibilities hereunder other than to hold, invest and disburse the Escrow Fund in accordance with this Agreement. Escrow Agent shall notify both Seller and Buyer before releasing any portion of the Escrow Fund. In the event of any dispute regarding any action taken or proposed to be taken by Escrow Agent with respect to the Escrow Fund, Escrow Agent may cause the Escrow Fund to be placed into the registry of a court of competent jurisdiction pursuant to an action of interpleader commenced by Escrow Agent, and Seller and Buyer, jointly and severally, shall pay directly or reimburse Escrow Agent for any and all expenses so incurred by Escrow Agent, including, without limitation, reasonable attorneys' fees incurred by Escrow Agent in any such duties action. Seller and Buyer acknowledge that Escrow Agent is acting hereunder solely as are expressly set forth in this Section 2.21 a convenience to the parties, and in except for Escrow Agent's gross negligence or willful acts of misconduct, Seller and Buyer, jointly and severally, shall indemnify and hold harmless Escrow Agent of and from any and all liabilities, costs, expenses and claims (including reasonably attorneys' fee actually incurred), of any nature whatsoever, by reason of or arising out of its acting as escrow agent hereunder. Escrow Agent may obtain the Aleris Increase Joinder Amendment, which advice of counsel and shall be deemed purely ministerial protected in nature, and no other duties shall be impliedany action taken in good faith in accordance with such advice. The Escrow Agent shall not be subject required to defend any fiduciary legal proceedings that may be instituted against Escrow Agent in respect of this Agreement or other implied duties, regardless the Escrow Fund unless requested to do so by the Seller and Buyer and indemnified to the satisfaction of whether a Default has occurred the Escrow Agent against the cost and is continuingexpenses of such defense. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content institute legal proceedings of any such document, notice, instruction or requestkind. The Escrow Agent shall have no duty responsibility for the genuineness or validity of any document or other item submitted to solicit Escrow Agent, and shall be protected in acting in accordance with any payments from any Person which may be due written instructions given to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action which have been signed by Seller and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21Buyer.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties Lender shall act as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxesthe Buydown Account during the Buydown Period. If any additional fee has been charged and collected by Xxxxxx on the Closing Disclosure, interest, penalties and other amounts upon demand. Without limiting the foregoing, fee is charged solely to act as the Escrow Agent for the Buydown Account and said fee is not part of the Buydown Deposit held in the Buydown Account. The Lender will hold and administer the Buydown Account and apply the payments from the Buydown Deposit according to the Payment Schedule on Exhibit A. Buydown Deposit: The amount of the Buydown Deposit has been determined based upon the term of the Buydown Period and the difference between the monthly P&I payments at the bought down interest rates ("Buydown Subsidy) and the actual monthly P&I payments at the interest rate on the Note ("Note P&I Payment"). These amounts are reflected as the Buydown Deposit Calculations on Exhibit "A" attached hereto. Borrower and Contributor, unless Contributor is Xxxxxx, relinquish any right or interest in the Buydown Deposit to be held in the Buydown Account. Buydown Subsidy: Each monthly Buydown Subsidy payment from the Buydown Account will pay only a part of the interest portion of the monthly Note P&I payment $ due; and Borrower will be required to pay the remaining balance of each monthly P&I payment as it becomes due ("Buydown P&I Payment"). Upon receipt of the Buydown P&I Payment from Borrower, the Buydown Subsidy amount shall be entitled to deduct such Taxes, interest and penalties withdrawn by the Lender from the Escrowed Amounts prior Buydown Account and applied each month toward the Note P&I Payment according to the Payment Schedule on Exhibit "A" attached hereto. The Buydown Subsidy and the Buydown P&I Payment shall be combined to pay the full Note P&I Payment directly to the Lender, its release of successors and/or assigns or its servicing agent. If Xxxxxxxx fails to make the Escrowed Amounts Buydown P&I Payment as agreed to herein, the Lender shall not withdraw or apply any Buydown Subsidy until such Buydown P&I Payment is received from Borrower; and the late charges shall be assessed as on the Note P&I Payment as described in accordance with this Section 2.21the Note. Borrower is fully responsible for any late payments or any past due payments on the Loan. The Buydown Deposit shall not be used to pay past due payments on the Loan.
Appears in 1 contract
Samples: Buydown Agreement
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 will hold, keep and in deliver all documents and funds lodged hereunder by the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The parties with the Escrow Agent shall not be subject in accordance with the terms and provisions of this Contract. In the even of any litigation or controversy related to any fiduciary or other implied duties, regardless of whether a Default has occurred documents and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as funds lodged hereunder by the parties with the Escrow Agent, with, the terms Buyer and conditions Seller will each be obligated to pay one-half of any other agreement, instrument Escrow Agent’s fees and costs incurred as a result of such litigation or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the controversy. Escrow Agent will be required liable only to determine if any Person has complied with any such agreements, nor shall any additional obligations of hold said sums and deliver the Escrow Agent be inferred from the terms of such agreements, except same to the extent such provisions are repeated parties named herein in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict accordance with any of the provisions of this Section 2.21 or the Aleris Increase Joinder AmendmentContract, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The being expressly understood that by acceptance of this Contract, Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection is acting in the event capacity of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation a depository only with respect to the Escrowed Amounts except for funds lodged hereunder by the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection parties with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement and will not be liable or the Aleris Increase Joinder Amendment to the contrary notwithstandingresponsible for, in no event shall the and Buyer and Seller hereby expressly indemnify and save and hold Escrow Agent be liableharmless against, directly or indirectly, for any (x) and all damages, losses or expenses arising out unless same will have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement among the parties to this Contract, or among them or any of them and any other party resulting in any adverse claim and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent will be entitled to refuse to comply with any such claims or demands so long as the disagreement may continue; and in so refusing Escrow Agent will make no delivery or other disposition of any of the services provided hereunder or monies then held by it under the Aleris Increase Joinder Amendment other than damages, losses terms of this Contract and in so doing Escrow Agent will not become liable to anyone for such refusal; Escrow Agent will be entitled to continue to refrain from acting until (a) the rights of the Adverse claimants will have been finally settled by binding arbitration or expenses which result from finally adjudicated by a court assuming and having jurisdiction over the Escrow Agent’s willful misconduct monies involved herein or gross negligenceaffected hereby, or (yb) special, indirect all differences will have been adjusted by agreement between or consequential loss or damage of any kind whatsoever (including lost profits), even if among the parties and Escrow Agent has will have been advised of the likelihood notified in writing of such loss or damage and regardless of agreement signed by the form of actionparties hereto. Should the Further, Escrow Agent become liable for will have the right at all times to pay all sums held by it (i) to the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in appropriate party under the Escrow Account, and including interest and penalties thereonterms hereof, or (ii) into any payment made hereundercourt of competent jurisdiction after a dispute between or among the parties hereto has arisen, the Loan Parties agree, jointly and severally, to reimburse the whereupon Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21Agent’s obligations hereunder will terminate.
Appears in 1 contract
Samples: Contract of Sale and Purchase (Semoran Financial CORP)
Escrow Agent. The Escrow Agent undertakes agrees to perform only such duties as are expressly set forth accept, hold and disburse the Deposit in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, accordance with the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger this Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the of doubt as to Escrow Agent's duties or liabilities under this Agreement, Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person whichmay, in its opinion, conflict with any of sole discretion: (a) continue to hold the provisions subject matter of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given the parties mutually agree to the disbursement thereof or until a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all judgment of the Escrowed Amounts into a court of competent jurisdiction determines the rights of the parties therein; or may seek (b) deposit the same with the Clerk of Circuit Court of Orange County Florida and upon notifying all parties concerned of such action, all liability on the part of Escrow Agent will fully terminate except to the extent of an accounting for items theretofore delivered out of escrow. In the event of any legal action involving Buyer and Seller wherein Escrow Agent is made a declaratory judgment with respect party by virtue of acting as Escrow Agent hereunder, or in the event of the commencement of any legal action wherein Escrow Agent interpleads the subject matter of this escrow, Escrow Agent will be entitled to certain circumstancesrecover reasonable attorney's fees and costs incurred, including, without limitation, those incurred on appeal, if any, and thereafter in any administrative, mediation, arbitration or bankruptcy proceedings, said fees and costs to be fully relieved charged and assessed as court costs in favor of the prevailing party and deducted from the funds interpleaded. Buyer and Seller agree that the Escrow Agent will not be liable to any and all liability party or obligation with respect person whatsoever for misdelivery of the Deposit, unless such misdelivery is due to such interpleaded assets the willful breach of this Agreement or gross negligence on the part of Escrow Agent, nor will Escrow Agent be liable for any action taken by it, unless taken or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel suffered in willful disregard of its selection obligations hereunder or with gross negligence. Additionally, Seller acknowledges that in the event of any dispute disagreement between Seller and Buyer concerning the Deposit, the transaction under this Agreement or question as any other matter related to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Property, Escrow Agent shall have no liability or obligation with respect may continue to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse represent Buyer in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the such dispute, including negotiations, arbitration, mediation and litigation, so long as Escrow Agent a party first delivers the Deposit to the same. Anything Clerk of Circuit Court of Orange County, Florida in the manner previously contemplated in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21ss.19.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Regency Realty Corp)
Escrow Agent. The At the time of the Closing, and subject to receipt by Escrow Agent undertakes or express authorization from each of Purchaser and Seller to perform only such duties as are expressly set forth in this Section 2.21 and in commence the Aleris Increase Joinder AmendmentClosing, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied dutiesconfirm that each party is registered as a transacting user entity on the International Registry, regardless of whether a Default and has occurred and is continuing. The appointed Escrow Agent as its professional user entity; and shall not have thereafter (i) disburse that portion of the Purchase Price, if any, necessary to secure the release and termination of any duty Liens, as instructed in writing by Seller; (ii) disburse to take any discretionary action the order of Seller, or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, withdesignee, the terms and conditions of Purchase Price (reduced by any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall amount disbursed by the Escrow Agent be pursuant to Section 5.3(i) above); (iii) retain Purchaser’s 50% share of Escrow Agent’s fees required to determine if be deposited by Purchaser with Escrow Agent hereunder, and retain from the Purchase Price Seller’s 50% share of Escrow Agent’s fees hereunder; (iv) date and file any Person has complied with any such agreementsapplicable Lien releases, nor shall any additional obligations the FAA Xxxx of Sale and the FAA Registration Application; (v) date and deliver the Warranty Xxxx of Sale to Purchaser; (vi) date and deliver the Receipt to Seller; (vii) register the sale of the Escrow Agent be inferred from Aircraft as a “sale” upon the terms of such agreements, except to International Registry established under the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon Cape Town Convention; and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall (viii) deliver to the Escrow Agent authorized signers’ forms in parties a filing memorandum confirming the form date and time of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To filing of the extent practicable, foregoing documents with the Loan Parties FAA and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts International Registry in accordance with this Section 2.21its standard and customary practices.
Appears in 1 contract
Samples: Aircraft Purchase Agreement (Fulgent Genetics, Inc.)
Escrow Agent. The Seller has established an escrow account with Xxxxxx & Xxxxxxxxx, P.A. (“Escrow Agent undertakes Agent”), with offices located at 0 Xxxx Xxxxxxx Xxxx, Xxxxx 0000, Xxxx Xxxxxxxxxx, Florida 3301, and all Deposits shall be held and disbursed pursuant to perform only such duties as are expressly set forth in this Section 2.21 and in accordance with the Aleris Increase Joinder Amendmentterms of this Agreement and that certain Escrow Agreement which is included in the Condominium Documents, copies of which shall be deemed purely ministerial in nature, and no other duties shall be impliedhave been provided to Buyer. The Escrow Agent shall not be subject to Buyer may obtain a receipt for any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall all escrow deposits from the Escrow Agent upon request. Seller may change escrow agents (as long as the new escrow agent is authorized to be required to determine if an escrow agent under applicable Florida law), in which case Buyer’s Deposit (and any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent interest actually earned on them) may be inferred from the terms of such agreements, except transferred to the extent such provisions are repeated in new escrow agent at Seller’s discretion. At closing, all Deposits not previously disbursed to Seller (and any interest actually earned) will be released to Seller. If Buyer defaults, Seller is entitled to retain all Deposits (and any interest actually earned on them). If Buyer properly terminates this Section 2.21 or Agreement in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything manner allowed in this Agreement or the Aleris Increase Joinder Amendment by applicable law, all Deposits (and any interest actually earned on them) will be returned to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any Buyer within thirty (x30) damages, losses or expenses arising out days of the services provided hereunder effective date of Buyer’s cancellation (or under the Aleris Increase Joinder Amendment other than damagesdate Buyer’s Deposit check(s) clear, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including lost profitsif later), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds The Deposits will not be held by it in the Escrow Accountan interest-bearing account, and including interest and penalties thereontherefore, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall neither Buyer nor Seller have be entitled to deduct such Taxes, any interest and penalties from on the Escrowed Amounts prior Deposits. Seller is not required to its release place (or cause to be placed) Deposits in an account which bears interest at all or at any particular rate. Buyer recognizes that if Seller uses all or any portion of the Escrowed Amounts Deposits in accordance with this Section 2.21construction, or if all or any portion of the Deposits are retained in non-interest bearing accounts, no interest will be earned or deemed to be earned (even if Seller indirectly benefits from any such use or retention). Any Deposits made by Buyer in excess of ten percent (10%) of the Purchase Price may be used by Seller for paying construction costs of the Condominium as provided by Florida Law. Nothing contained herein shall be deemed a waiver of any right or remedy Seller or Buyer may have at law or in equity.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21.Incremental
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Escrow Agent. The In the event the Escrow Agent undertakes is in doubt as to perform only such its duties as are expressly set forth in and liabilities under the provisions of this Section 2.21 and in Agreement, the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to complymay, in its capacity as Escrow Agentsole discretion, withcontinue to hold the monies or instruments which are the subject of the escrow until the parties mutually agree in writing to disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the terms rights of the parties thereto, or it may deposit all the monies and/or instruments then held pursuant to this Agreement with the Clerk of the Circuit Court of the county where the Property is located, and conditions of any other agreementupon notifying all parties concerning such action, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including all liability on the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations part of the Escrow Agent be inferred from the terms of such agreementsshall fully cease and terminate, except to the extent such provisions are repeated in this Section 2.21 of accounting for any monies or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form instruments theretofore delivered out of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees)escrow. In the event that of any suit between the Buyer and Seller wherein the Escrow Agent shall be uncertain is made a party by virtue of acting as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction hereunder, or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making suit wherein the Escrow Agent a party to interpleads the same. Anything in subject matter of this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoingescrow, the Escrow Agent shall be entitled to deduct such Taxesrecover reasonable attorneys’ fees and costs incurred, interest said fees and penalties costs to be charged and assessed as court costs in favor of the prevailing party. With respect to interpleader actions, reasonable attorneys’ fees and costs due to the Escrow Agent shall be paid from the Escrowed Amounts prior interplead funds. In the event of any litigation arising out of this Agreement or concerning the Property to its release be sold and purchased pursuant to the terms hereof, the Escrow Agent shall not be disqualified from representing the Buyer by reason of the Escrowed Amounts fact that the Escrow Agent shall have held or is then holding the Deposit, or any portion thereof, in accordance escrow pursuant to the terms of this Agreement. Xxxxx and Seller, jointly and severally, agree to indemnify, defend and hold harmless Escrow Agent from and against any and all costs, losses, claims, damages, liabilities and expenses, including reasonable attorneys’ fees which may be incurred by Escrow Agent in connection with its duties as Escrow Agent hereunder, which are not attributable to the willful default or gross negligence of Escrow Agent. This section shall survive the Closing or earlier termination of this Section 2.21Agreement.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 All fees and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations expenses of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or incurred in the Aleris Increase Joinder Amendmentordinary course of performing its responsibilities hereunder will be paid by Niku upon receipt of a written invoice by the Escrow Agent. Any extraordinary fees and expenses, including without limitation any fees or expenses incurred by the Escrow Agent in connection with a dispute over the distribution of Escrow Shares or the validity of a claim or claims by Niku made in an Officer's Certificate, will be paid 50% by Niku and 50% by the Holders. The Holders' liability for the extraordinary fees and expenses of the Escrow Agent may rely upon be paid by Niku and shall not be liable for acting or refraining from acting upon any recovered as a claim hereunder out of the Escrow Drawdown Request furnished to it hereunder Fund. If Niku has paid the Holders' portion of such fees and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to expenses as permitted under this Section 4(a) then the Escrow Agent authorized signers’ forms in will, upon demand by Niku, transfer to Niku Escrow Consideration having a value equal to such portion of fees and expenses, with Escrow Shares being valued at for this purpose at the form Fair Market Value per share of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content Common Stock of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect Niku (as determined by its Board of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment feesDirectors). In the event that the balance in the Escrow Fund is not sufficient to pay the extraordinary fees and expenses of the Escrow Agent, as described in the prior paragraph, or in the event the Escrow Agent shall be uncertain as incurs any liability to any person, firm or corporation by reason of its duties acceptance or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions administration of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicableAgreement, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agreeparties hereto, jointly and severally, agree to reimburse indemnify the Escrow Agent for such Taxesits extraordinary fees and expenses or costs and expenses, interestincluding, penalties without limitation, counsel fees and other amounts upon demandexpenses, as the case may be. Without limiting Notwithstanding the foregoing, no indemnity need be paid in the event of the Escrow Agent shall be entitled to deduct such TaxesAgent's gross negligence, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21bad faith or willful misconduct.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes referred to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial definition thereof contained in nature, and no Section 1.1 of this Agreement has agreed to act as such for the convenience of the Parties without fee or other duties shall be impliedcharges for such services as Escrow Agent. The Escrow Agent shall not be subject liable: (a) to any fiduciary of the Parties for any act or omission to act except for its own willful misconduct or gross negligence; (b) for any legal effect, insufficiency, or undesirability of any instrument deposited with or delivered by Escrow Agent or exchanged by the Parties hereunder, whether or not Escrow Agent prepared such instrument; (c) for any loss or impairment of funds that have been deposited in escrow while those funds are in the course of collection, or while those funds are on deposit in a financial institution, if such loss or impairment results from the failure, insolvency or suspension of a financial institution; (d) for the expiration of any time limit or other implied dutiesconsequence of delay, regardless of whether unless a Default properly executed written instruction, accepted by Escrow Agent, has occurred and is continuing. The instructed Escrow Agent shall not have any duty to take any discretionary comply with said time limit; (e) for the default, error, action or exercise any discretionary powersomission of either Party to the escrow. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to complyAgent, in its capacity as escrow agent, shall be entitled to rely on any document or paper received by it, believed by such Escrow Agent, within good faith, to be bona fide and genuine. In the terms and conditions event of any other agreement, instrument dispute as to the disposition of the Deposit or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreementmonies held in escrow, nor shall the or of any documents held in escrow, Escrow Agent be required may, if such Escrow Agent so elects, interplead the matter by filing an interpleader action in a court of general jurisdiction in the county or circuit where the Real Property is located (to determine if any Person has complied with the jurisdiction of which both Parties do by this Agreement consent), and pay into the registry of the court the Deposit, or deposit any such agreementsdocuments with respect to which there is a dispute in the registry of such court, nor shall any additional obligations of the whereupon such Escrow Agent shall be inferred relieved and released from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The any further liability as Escrow Agent may rely upon and hereunder. Escrow Agent shall not be liable for acting or refraining from acting upon Escrow Agent's compliance with any Escrow Drawdown Request furnished to it hereunder legal process, subpoena, writ, order, judgment and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content decree of any such documentcourt, notice, instruction whether issued with or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstanceswithout jurisdiction, and thereafter be fully relieved from any and all liability whether or obligation with respect to such interpleaded assets not subsequently vacated, modified, set aside or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21reversed.
Appears in 1 contract
Samples: Combined Contribution and Purchase and Sale Agreement (Ashford Hospitality Trust Inc)
Escrow Agent. The Escrow Agent undertakes shall promptly pay from the Condominium Diligence Deposit from time to perform only time upon submission of invoices by the Consultants and Professionals and the joint written approval of such duties as are expressly set forth in this Section 2.21 invoices by Seller and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, withPurchaser, the terms fees incurred by the Consultants and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, the Professionals in connection herewith or otherwisewith the work performed as specified in subsections 30.3.1, including any other Loan Document 30.3.2 and including 30.3.3 above (the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees"Condominium Diligence Fees"). In the event that the Condominium Diligence Deposit is insufficient to pay the Condominium Diligence Fees in full, Purchaser and Seller shall each deposit an additional $50,000.00 (the "Additional Diligence Deposit") with Escrow Agent within five (5) days after receipt of a notice from Escrow Agent of such insufficiency. Notwithstanding the foregoing, Purchaser and Seller shall be uncertain as jointly responsible to its duties or rights hereunder or shall receive instructions, claims or demands from pay any Person which, in its opinion, conflict with any outstanding fees of the provisions Consultants and Professionals in excess of this Section 2.21 or the Aleris Increase Joinder AmendmentAdditional Diligence Deposit except Seller and Purchaser acknowledge and agree that Seller shall bear and pay the fees and disbursements of Escrow Agent in connection with Escrow Agent's preparation and negotiation of the Condominium Governing Documents on behalf of Seller and Purchaser shall bear and pay the fees and disbursements of its own counsel in connection with its counsel's review and negotiation of the Condominium Governing Documents. In the event there are any funds remaining from the Condominium Diligence Deposit and/or the Additional Diligence Deposit after payment in full of the Condominium Diligence Fees, it such remainder shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The paid by Escrow Agent may interplead all of one-half to Purchaser and one-half to Seller. Notwithstanding anything contained herein to the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstancescontrary, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as the termination of this Agreement, Seller shall be deemed the owner of all materials prepared by the Consultants and Professionals in connection herewith (collectively, the "Consulting Materials") and Purchaser shall deliver to Seller, upon the meaning or construction termination of this Agreement, all Consulting Materials in Purchaser's possession and shall direct any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect Consultants and Professionals to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue deliver any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstandingConsulting Materials, in no event shall the Escrow Agent be liable, directly such respective Consultants' or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severallyProfessionals' possession, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21Seller.
Appears in 1 contract
Escrow Agent. Purchaser understands that Fulbright & Xxxxxxxx, L.L.P., solely as an accommodation to the Company and Purchasers, has agreed to serve as the escrow agent (the “Escrow Agent”) for the transactions contemplated by this Agreement. The Escrow Agent undertakes is concurrently acting as the Company’s legal counsel and that certain fees and expenses owed by the Company to perform the Escrow Agent may be paid by the Company out of the escrowed amounts, including fees incurred in connection with the transactions contemplated hereby. Purchaser agrees and acknowledges that the duties of the Escrow Agent are only ministerial in nature, and the Escrow Agent shall incur no liability and shall not be liable to any Purchaser, the Company or anyone else unless the Escrow Agent is finally judicially determined to have acted in bad faith. The Escrow Agent is hereby instructed to receive (i) the purchase price of the investment to be deposited by Purchaser at the Closing and held in an attorney trust account designated by the Escrow Agent; and (ii) receive original or copies of signature pages of this Agreement and the other Financing Documents. At the Closing, the Escrow Agent shall (x) release the deposited funds along with original or copies of the signature pages to this Agreement and the other Financing Documents to the Company; and (y) shall release the copies of the signature pages to this Agreement and the other Financing Documents to Purchaser. Purchaser and the Company acknowledge and agree that Escrow Agent will be using it’s firm trust account as the escrow account and that no interest on amounts held in escrow will be paid to any Purchaser or the Company under any circumstances, regardless of the amount of time such duties funds are held. Purchasers and the Company jointly and severally agree to indemnify and hold harmless the Escrow Agent from any and all fees, costs, expenses, damages, judgments, amounts paid in settlement, and any other liability incurred by Escrow Agent in connection with, relating to or arising from it’s performance as Escrow Agent hereunder. Escrow Agent will not release the funds of any Purchaser to the Company until Escrow Agent receives written authorization (which may be by e-mail) from such Purchaser to do so. By executing this Agreement, Purchaser and the Company are expressly hereby irrevocably authorizing and instructing the Escrow Agent to return each Purchaser’s Purchase Price to such Purchaser if the Closing has not occurred on or prior to November 15, 2003. The Escrow Agent is entitled to rely on the accuracy, act in reliance upon the contents and assume the genuineness of any instructions received by it from the Company or any Purchaser. In the event of dispute regarding any instructions the Escrow Agent may receive hereunder, Escrow Agent is under no obligation to bring an action or proceeding in court with respect to any escrowed amounts, but may continue to hold the escrowed amounts or return them to Purchasers at any time after November 15, 2003. Escrow Agent has no responsibilities or obligations as Escrow Agent, except as set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied2.3. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether is a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger third party beneficiary under this Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes agrees to perform only such duties as are expressly set forth accept, hold and disburse the Deposit in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, accordance with the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger this Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the of doubt as to Escrow Agent's duties or liabilities under this Agreement, Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person whichmay, in its opinion, conflict with any of sole discretion: (a) continue to hold the provisions subject matter of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given the parties mutually agree to the disbursement thereof or until a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all judgment of the Escrowed Amounts into a court of competent jurisdiction determines the rights of the parties therein; or may seek (b) deposit the same with the Clerk of Circuit Court of Orange County Florida and upon notifying all parties concerned of such action, all liability on the part of Escrow Agent will fully terminate except to the extent of an accounting for items theretofore delivered out of escrow. In the event of any legal action involving Buyer and Seller wherein Escrow Agent is made a declaratory judgment with respect party by virtue of acting as Escrow Agent hereunder, or in the event of the commencement of any legal action wherein Escrow Agent interpleads the subject matter of this escrow, Escrow Agent will be entitled to certain circumstancesrecover reasonable attorney's fees and costs incurred, including, without limitation, those incurred on appeal, if any, and thereafter in any administrative, mediation, arbitration or bankruptcy proceedings, said fees and costs to be fully relieved charged and assessed as court costs in favor of the prevailing party and deducted from the funds interpleaded. Buyer and Seller agree that the Escrow Agent will not be liable to any and all liability party or obligation with respect person whatsoever for misdelivery of the Deposit, unless such misdelivery is due to such interpleaded assets the willful breach of this Agreement or gross negligence on the part of Escrow Agent, nor will Escrow Agent be liable for any action taken by it, unless taken or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel suffered in willful disregard of its selection obligations hereunder or with gross negligence. Additionally, Seller acknowledges that in the event of any dispute disagreement between Seller and Buyer concerning the Deposit, the transaction under this Agreement or question as any other matter related to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Property, Escrow Agent shall have no liability or obligation with respect may continue to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse represent Buyer in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the such dispute, including negotiations, arbitration, mediation and litigation, so long as Escrow Agent a party first delivers the Deposit to the same. Anything Clerk of Circuit Court of Orange County, Florida in the manner previously contemplated in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21ss.18.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Regency Realty Corp)
Escrow Agent. The All fees and expenses, including fees for retained services for escrow administration and reasonable attorney’s fees of the Escrow Agent undertakes to perform only such duties as are expressly set forth Agent, reasonably incurred in entering into this Section 2.21 Agreement and in the Aleris Increase Joinder Amendment, which shall ordinary course of performing his responsibilities hereunder will be deemed purely ministerial paid by the Joint Owners (and not through withdrawal from the Escrow Fund) in nature, and no other duties shall be implied. The Escrow Agent shall not be subject proportion to any fiduciary or other implied duties, regardless their Seabrook Station ownership by the Joint Owners upon receipt of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as written invoice by the Escrow Agent, withissued to FPLE Seabrook as managing agent for Seabrook Station, for the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendmenttotal amount due. The Escrow Agent may rely upon retain any and shall not be liable for acting all professionals that, within his sole discretion, are necessary to fulfill his obligations under the terms of this Agreement. Any extraordinary fees and expenses including attorney’s fees, including without limitation any fees or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed expenses paid by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in connection with a dispute with a Joint Owner over the form distribution of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into all or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect portion of the Escrowed Term Loans, interestEscrow Fund or the validity of a claim against the Escrow Fund, or any applicable fees (including arranger and commitment fees)the interpretation of this Agreement, will be paid by the non-prevailing party in such dispute. In the event that the Escrow Agent shall be uncertain as incurs any liability to any person, firm or corporation by reason of his acceptance or proper and timely administration of this Escrow Agreement, each Joint Owner in proportion to its duties or rights hereunder or shall receive instructionsownership share in Seabrook Station agrees, claims or demands from to the extent allowed by law, to indemnify the Escrow Agent, his agents, directors and employees, against any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all such liability or obligation with respect to such interpleaded assets for his fees and expenses or any action or nonaction based on such declaratory judgmentcosts and expenses, including, without limitation, counsel fees and expenses, as the case may be. The Escrow Agent may consult with legal counsel of its selection Notwithstanding the foregoing, no indemnity need be paid in the event of the Escrow Agent’s gross negligence, bad faith or willful misconduct. Each Joint Owner agrees to assume any dispute and all obligations imposed now or question as to the meaning or construction of hereafter by any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation applicable tax law with respect to the Escrowed Amounts except for payment out of the Escrow Agent’s willful misconduct or gross negligence. To Fund under this Agreement, and to the extent practicableallowed by law, the Loan Parties to indemnify and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making hold the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstandingharmless from and against any taxes, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out additions of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxeslate payment, interest, penalties and other amounts upon demand. Without limiting the foregoingexpenses, that may be assessed against the Escrow Agent on any such payment or other activities under this Agreement. Each Joint Owner shall be entitled undertake to deduct such Taxesinstruct the Escrow Agent in writing with respect to the Escrow Agent’s responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with his acting as Escrow Agent under this Agreement. To the extent allowed by law, each Joint Owner agrees to indemnify and hold the Escrow Agent harmless from any liability, including costs and expenses (including reasonable legal fees), interest and penalties from penalties, on account of taxes, assessments or other governmental charges, including without limitation the Escrowed Amounts prior withholding or deduction or the failure to its release withhold or deduct same, and any liability for failure to obtain proper certifications, or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement. Indemnifications in favor of the Escrowed Amounts in accordance with Escrow Agent hereunder shall survive the resignation or removal of the Escrow Agent and the termination of this Section 2.21Agreement and shall be several, and not joint, among the Joint Owners.
Appears in 1 contract
Samples: Escrow Agreement
Escrow Agent. The Escrow Agent undertakes hereby accepts its designation as Escrow Agent hereunder and agrees to perform only such duties hold and disburse the Xxxxxxx Money as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be impliedherein provided. The Escrow Agent shall not be subject to liable for any fiduciary acts taken in good faith, shall only be liable for its willful default or other implied dutiesgross negligence, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to complymay, in its capacity as Escrow Agentsole discretion, withrely upon the oral or written notices, the terms and conditions of any other agreementcommunications, instrument orders or document between instructions given by Purchaser or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or Seller. Except in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished case of Purchaser’s timely termination pursuant to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective DateSection 3.4, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validityabove, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any a dispute or question as to between Purchaser and Seller under this Agreement sufficient in the meaning or construction discretion of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicablejustify its doing so, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct tender into the registry or custody of any court of competent jurisdiction all money or property in its hands under the terms of this Agreement, together with such Taxeslegal proceedings as it deems appropriate, interest and penalties thereupon to be discharged from all further duties under this Agreement. Any such legal action may be brought in any such court as Escrow Agent shall determine to have jurisdiction thereof. Seller and Purchaser hereby agree to indemnify and hold harmless Escrow Agent against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and counsel fees and disbursements which may be imposed upon Escrow Agent or incurred by it in connection with its acceptance of this appointment as Escrow Agent hereunder or the Escrowed Amounts prior performance of its duties hereunder, including, without limitation, any litigation arising from this Agreement or involving the subject matter hereof; provided, however, that if Escrow Agent shall be found guilty of willful default or gross negligence under this Agreement, then, in such event, Escrow Agent shall bear all such losses, claims, damages and expenses; and provided further that neither Seller nor Purchaser shall have any liability to its release Escrow Agent under this indemnity provision for any cost of litigation incurred by Escrow Agent, including, without limitation, attorney fees, arising or caused solely by the conduct of the Escrowed Amounts other party which results in accordance with this Section 2.21.a dispute solely between the other party and Escrow Agent. 1184306 v7
Appears in 1 contract
Samples: Purchase and Sale Agreement (Steadfast Apartment REIT III, Inc.)
Escrow Agent. The duties of the Escrow Agent undertakes to perform only such duties as are expressly set forth in determined solely by this Section 2.21 Agreement and in the Aleris Increase Joinder Amendment, which shall be deemed are purely ministerial in nature. If any dispute arises between the parties as to whether or not the Escrow Agent is obligated to deliver the Escrowed Funds, the Escrow Agent is not obligated to make any delivery, but may hold the Escrowed Funds until receipt of a written authorization signed by all persons having an interest in the dispute, directing the disposition of the Escrowed Funds. In the absence of a written authorization, the Escrow Agent may hold the Escrowed Funds until the rights of the parties have been finally determined in an appropriate proceeding. Moreover, the Escrow Agent may bring an appropriate proceeding for leave to deposit the Escrowed Funds pending a determination of the rights of the parties. If threatened with litigation, the Escrow Agent may interplead all interested parties in an appropriate action and may deposit the Escrowed Funds with the clerk of the court; thereupon the Escrow Agent will have no other duties shall be impliedfurther liability under this Agreement. The Escrow Agent parties agree that Xxxxxx XxXxxxxxx & Fish, LLP shall not be subject to any fiduciary or other implied dutiesnot, regardless by virtue of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity serving as Escrow Agent, with, the terms be disqualified from representing Landlord and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, BFA in connection herewith or otherwise, including with any other Loan Document and including dispute regarding the Aleris Merger Agreement, nor shall disposition of the Escrowed Funds. Escrow Agent be required is not liable for any mistake of fact or error of judgment, or for any acts or omissions, unless caused by its willful misconduct or gross negligence. The parties to determine if any Person has complied with any such agreements, nor shall any additional obligations of the this Agreement each release Escrow Agent from any act done or omitted to be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The done by Escrow Agent may in good faith in performance of its obligations under this Agreement. Escrow Agent is entitled to rely upon and shall not be liable for acting on any document or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably signature believed by it to be genuine and may assume that any person purporting to have been signed and presented give any writing or instruction in connection with this Agreement is duly authorized to do so by the Designated Companyparty on whose behalf such writing or instruction is given. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the The undersigned jointly and severally indemnify and protect Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validityfrom and hold it harmless against any loss, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interestliability, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s expense incurred without willful misconduct or gross negligence. To negligence on the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the part of Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of its duties under this Escrow Agreement, as well as the services provided hereunder costs and expenses of defending against any claim or liability arising under this Agreement. WITNESS the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including lost profits), even if the Escrow Agent has been advised execution hereof as an instrument under seal as of the likelihood date first above written. KNH REALTY TRUST POINT THERAPEUTICS, INC. By: /s/ Xxxx X. Power By: /s/ Xxxxxxx X. Xxxxx Xxxx X. Power, as Trustee and not individually Name: Xxxxxxx X. Xxxxx Title: Secretary BOSTON FEDERAL ASSOCIATES, a Massachusetts limited partnership XXXXX BROTHERS XXXXXXXX & CO. By: Boston Federal Associates LLC, By: /s/ J. Xxxxxx Xxxx its general partner Name: J. Xxxxxx Xxxx Title: Managing Director By: /s/ Xxxx X. Power Xxxx X. Power, Manager XXXXXX, XXXXXXXXX & FISH, LLP By: /s/ Xxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx EXHIBIT A Letter of such loss or damage and regardless of the form of actionCredit XXXXX BROTHERS XXXXXXXX & CO. Should the Escrow Agent become liable for 000 XXXXXXXX, XXX XXXX, XX 00000-0000 PRIVATE BANKERS SWIFT: XXXXXX00 TELEX: 62923 BBHUW DATE: MARCH 28, 2005 BENEFICIARY: BOSTON FEDERAL ASSOCIATES C/O XXXXXX XXXXX INTEREST 000 XXXXXXX XXXXXX, XXXXX 0000 XXXXXX, XX 00000 ATTENTION: XXXX XXXXX GENTLEMEN/LADIES: AMOUNT: $300,000.00 (iU.S. DOLLARS THREE HUNDRED THOUSAND AND 00/100) the payment of any TaxesWE HEREBY ISSUE OUR IRREVOCABLE, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow AccountTRANSFERABLE STANDBY LETTER OF CREDIT NO. MA-S330825 IN YOUR FAVOR AT THE REQUEST AND FOR THE ACCOUNT OF POINT THERAPEUTICS INC., and including interest and penalties thereon000 XXXXXX XXXXXX, or (iiXXXXXX, XX 00000 WHICH IS AVAILABLE BY PAYMENT OF YOUR SIGHT DRAFT(S) any payment made hereunderDRAWN ON XXXXX BROTHERS XXXXXXXX & CO., the Loan Parties agreeNEW YORK BEARING THE CLAUSE: “DRAWN UNDER STANDBY LETTER OF CREDIT NO. MA-S330825 OF XXXXX BROTHERS XXXXXXXX & CO., jointly and severallyNEW YORK” WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENT: A LETTER PURPORTEDLY SIGNED BY AN AUTHORIZED SIGNATORY OF BOSTON FEDERAL ASSOCIATES STATING THAT: “BOSTON FEDERAL ASSOCIATES IS ENTITLED TO DRAW ON LETTER OF CREDIT NO. MA-S330825 UNDER THE TERMS OF THE THE LEASE DATED MARCH 16, to reimburse the Escrow Agent for such Taxes2005 BETWEEN BOSTON FEDERAL ASSOCIATES AS LANDLORD AND POINT THERAPEUTICS INC. AS TENANT”. WE HEREBY AGREE WITH THE DRAWERS, interestENDORSERS AND BONA FIDE HOLDERS OF ALL DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT THAT SUCH DRAFTS WILL BE HONORED BY US IF PRESENTED TO US AT 000 XXXXXXXX, penalties and other amounts upon demandXXX XXXX, XXX XXXX 00000 ATTN: LETTER OF CREDIT GROUP ON OR BEFORE THE EXPIRATION DATE SET FORTH HEREIN OR ANY FUTURE EXPIRATION DATE. Without limiting the foregoingSPECIAL CONDITIONS: PARTIAL AND MULTIPLE DRAWINGS ARE ALLOWED. ANY PARTIAL DRAWING UNDER THIS LETTER OF CREDIT WILL CAUSE THE STATED AVAILABLE BALANCE TO BE REDUCED BY THE AMOUNT OF ANY SUCH PARTIAL DRAWING. ****** CONTINUED ON NEXT PAGE ****** XXXXX BROTHERS XXXXXXXX & CO. 000 XXXXXXXX, the Escrow Agent shall be entitled to deduct such TaxesXXX XXXX, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21XX 00000-0000 PRIVATE BANKERS SWIFT: XXXXXX00 TELEX: 62923 BBHUW THIS LETTER OF CREDIT IS TRANSFERABLE ONE OR MORE TIMES, BUT IN EACH INSTANCE TO A SINGLE TRANSFEREE AND IN THE FULL AMOUNT AVAILABLE TO BE DRAWN AT THE TIME OF SUCH TRANSFER. TRANSFER FEES ARE FOR ACCOUNT OF THE APPLICANT. TRANSFER UNDER THIS LETTER OF CREDIT IS RESTRICTED TO THE COUNTERS OF XXXXX BROTHERS XXXXXXXX & CO., NEW YORK AND ANY TRANSFER DOES NOT BECOME OPERATIVE UNTIL THE FOLLOWING CONDITIONS HAVE BEEN COMPLIED WITH:
Appears in 1 contract
Samples: Lease Termination Agreement (Point Therapeutics Inc)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless Sole liability of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any take custody of the provisions Holdback and to disburse said escrowed monies according to the terms of this Section 2.21 or the Aleris Increase Joinder Amendment, it Agreement. No fees shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The charged by Escrow Agent may interplead all of for setting up the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstancesescrow and administering it. However, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection notwithstanding the foregoing, in the event of any a breach of this Agreement by either of the Sellers or the Purchaser, and in the event of a dispute or question as to the meaning or construction disposition of said escrowed funds, the parties hereto agree to allow the Escrow Agent to hold said funds during any court proceedings, and jointly and severally agree to indemnify and hold harmless the Escrow Agent from all liability hereunder and to reimburse the Escrow Agent for all court costs and attorneys' fees incurred by it, including attorneys' fees on appeal in the event it is joined in any legal proceedings regarding this Agreement. The Purchaser acknowledges that Escrow Agent is the attorney for the Sellers and agrees that Escrow Agent may represent the Sellers in connection with any dispute arising under this Agreement, notwithstanding such service as Escrow Agent under this Agreement. A copy of this Agreement shall be delivered to Escrow Agent and shall constitute the escrow instructions. If any dispute arises concerning disposition of the provisions hereof escrowed monies, Escrow Agent may retain the xxxxxxx money deposit until receipt by Escrow Agent of written instructions signed by all of the parties having an interest in such dispute and directing the manner in which Escrow Agent should dispose of the escrowed monies until the final determination of the rights of the parties in an appropriate judicial proceeding. Escrow Agent shall incur no liability to any person whomsoever in connection with the escrowed monies or under the Aleris Increase Joinder Amendment actions taken or its duties hereunder omissions occurring in connection with this Agreement, except liability for Escrow Agent's gross negligence or thereunderwillful misconduct. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue failure of any redress or recourse institution in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the which Escrow Agent a party deposits the escrowed monies. If the escrowed monies are to be placed in an interest-bearing account, escrow Agent makes no warranties concerning the samerate of return earned on the xxxxxxx money deposit. Anything in The provisions of this Agreement Section shall survive the Closing or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out termination of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21Agreement.
Appears in 1 contract
Escrow Agent. The On or prior to the date of the execution of this Agreement, the parties hereto shall deposit with Lawyers Title Insurance Corporation ("Escrow Agent undertakes Agent") all documents and moneys necessary to perform only such duties as are expressly set forth in comply with their obligations under this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be impliedAgreement. The Escrow Agent shall not be subject cause the delivery of the Operative Documents unless and until it has received written instructions from FFCA, Mortgagee, PAC and Precision Holdings to any fiduciary or other implied dutiesdo so. FFCA, regardless of whether a Default has occurred Mortgagee, PAC and is continuing. The Precision Holdings hereby engage Escrow Agent shall not have any duty to take any discretionary action or exercise any discretionary powersact as escrow agent in connection with the documents to be delivered pursuant to this Agreement. The FFCA, Mortgagee, PAC and Precision Holdings will deliver to Escrow Agent shall neither all documents, pay to Escrow Agent all sums and do or cause to be responsible for, nor chargeable with, knowledge of, nor have any requirements to complydone all other things necessary or required by this Agreement, in its capacity as the reasonable judgment of Escrow Agent, withto enable Escrow Agent to comply herewith and to enable any title insurance policy and/or endorsements provided for herein to be issued. Escrow Agent is authorized, in the event any conflicting demand is made upon it concerning these instructions or the escrow, at its election, to hold any documents and/or funds deposited hereunder until an action shall be brought in a court of competent jurisdiction to determine the rights of FFCA, Mortgagee, PAC and Precision Holdings or to interplead such documents and/or funds in an action brought in any such court. Deposit by Escrow Agent of such documents and funds, after deducting therefrom its charges and its expenses and attorneys' fees incurred in connection with any such court action, shall relieve Escrow Agent of all further liability and responsibility for such documents and funds. Escrow Agent's receipt of this Agreement and opening of an escrow pursuant to this Agreement shall be deemed to constitute conclusive evidence of Escrow Agent's agreement to be bound by the terms and conditions of this Agreement pertaining to Escrow Agent. Disbursement of any other agreementfunds shall be made by check, instrument certified check or document between or among any Loan Party wire transfer, as directed by FFCA, Mortgagee, PAC and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder AmendmentPrecision Holdings. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty obligation to inquire 1060441.101066947.03-CHISR01A - MSW into disburse any funds represented by check or investigate the validitydraft, accuracy and no check or content of any such document, notice, instruction or request. The draft shall be payment to Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict compliance with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendmentrequirements hereof, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from is advised by the Loan Parties and the Aleris Incremental Term Lendersbank in which such check or draft is deposited that such check or draft has been honored. The Escrow Agent may interplead all of is authorized to act upon any statement furnished by the Escrowed Amounts into holder or payee, or a court of competent jurisdiction collection agent for the holder or may seek a declaratory judgment with respect to certain circumstancespayee, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute lien on or question as to the meaning charge or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse assessment in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making Properties, concerning the Escrow Agent a party to the same. Anything in this Agreement amount of such charge or assessment or the Aleris Increase Joinder Amendment to amount secured by such lien without liability or responsibility for the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including lost profits), even if the Escrow Agent has been advised of the likelihood accuracy of such loss or damage and regardless of the form of action. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21statement.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject obligated, and shall have the right hereunder to make demands, to give notices, to exercise or refrain from existing any fiduciary or other implied dutiesrights, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty to take any discretionary or refrain from taking action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, solely in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger accordance with this Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not resign, or be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Dateremoved, the Designated Company shall deliver to except in accordance with the Escrow Agreement dated as of March 31, 1999, between the Seller and the Escrow Agent. Upon the acceptance of any appointment as a Escrow Agent authorized signers’ forms in by a successor Escrow Agent by execution of an instrument accepting the form same and all obligations of Exhibit A to the Aleris Increase Joinder Amendment. The a Escrow Agent hereunder, that successor Escrow Agent shall be thereupon succeed to and become vested with all the rights, powers, privileges and duties of the predecessor Escrow Agent under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate this Agreement, and the validity, accuracy or content of any such document, notice, instruction or request. The predecessor Escrow Agent shall have no duty to solicit any payments thereupon be discharged from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties and obligations under this Agreement. After any predecessor Escrow Agent's resignation or rights hereunder or shall receive instructionsremoval, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it Agreement shall be entitled inure to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question benefit as to the meaning any actions taken or construction of any of the provisions hereof or omitted to be taken by it under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the this Agreement while it was Escrow Agent’s willful misconduct or gross negligence. To the extent practicableUpon its resignation, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including 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. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct payment by the Seller of all reasonable expenses incurred by it in acting as Escrow Agent hereunder. The Seller agrees to execute and deliver to any successor Escrow Agent appointed hereunder all such Taxes, interest documents as may be necessary to preserve and penalties from protect the Escrowed Amounts prior to its release rights of the Escrowed Amounts in accordance Buyer. Any corporation into which the Escrow Agent may be merged or with this Section 2.21which it may be consolidated or converted, or to which substantially all of its corporate trust business may be transferred, shall automatically succeed to all of the rights and obligations of its predecessor and shall become the Escrow Agent hereunder without further action on the part of any of the parties hereto.
Appears in 1 contract
Samples: Pledge and Security Agreement (American Capital Strategies LTD)
Escrow Agent. The By their execution and delivery of this Agreement, Buyer and Seller acknowledge and confirm that under certain circumstances deposits (including the funds subject to this Agreement) may not be insured or fully insured by the Federal Deposit Insurance Corporation (“FDIC”). Each party has made its own analysis of FDIC insurance regulations affecting, or potentially affecting, the funds subject to this Agreement and is not relying upon any advice from Escrow Agent as to FDIC matters. Buyer and Seller understand and agree that Escrow Agent is holding the escrow funds as agent and that the funds are not trust funds. Simultaneously with final disbursement of the escrow funds pursuant to this Agreement, Escrow Agent shall be released of all liability and responsibility under this Agreement. Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine. Escrow Agent may assume that any person purporting to give any writing, notice, advice or instructions in connection with the provisions hereof, has been duly authorized to do so. Escrow Agent undertakes and agrees to perform only such duties as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which herein. The duty of Escrow Agent hereunder shall be deemed purely ministerial limited to the safe keeping of the escrow funds and the disposition of same in nature, and no other duties shall be impliedaccordance with the provisions hereof. The Escrow Agent shall have the right, but not be subject the obligation, to any fiduciary or other implied duties, regardless require a written statement signed by Buyer and Seller confirming satisfaction of whether a Default has occurred and is continuing. The Escrow Agent shall not have any duty all conditions precedent to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply, in its capacity as Escrow Agent, with, the terms and conditions disbursement of any other agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it funds hereunder and reasonably believed by it authorizing disbursement of said funds, together with accrued interest, if any. All notices to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The or from Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or requestin writing. The Buyer and Seller hereby release Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment losses incurred with respect to certain circumstances, and thereafter be fully relieved from any and all liability funds deposited hereunder by reason of the absence of or obligation insufficiency of FDIC insurance with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentfunds. The Buyer and Seller acknowledge that Escrow Agent has entered into this Agreement at their specific request and, in order to induce Escrow Agent to accept said escrow, do hereby agree to indemnify and hold Escrow Agent harmless from all loss, cost and expense, including reasonable attorneys’ fees and court costs, which it may consult suffer or incur as a result of acting as Escrow Agent under this Agreement, including, without limitation, claims arising with legal counsel respect to the absence or insufficiency of its selection in FDIC insurance for funds subject to this Agreement. In the event of any dispute or question as to the meaning disbursement of escrow funds or construction of any of the provisions hereof claim thereto by any party or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The person, Escrow Agent shall have no liability or obligation with respect the right to bring a suit in interpleader in the Escrowed Amounts except Circuit Court for Dallas County, Texas naming the parties to this Agreement and any other parties as may be appropriate in the opinion of Escrow Agent’s willful misconduct or gross negligence. To the extent practicableBuyer and Seller shall indemnify and hold harmless Escrow Agent from all costs, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse including attorneys’ fees, in connection with any dispute (other than with respect to a dispute involving such interpleader action. Upon the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out filing of said suit and deposit of the services provided hereunder or under balance of escrow funds in the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage of any kind whatsoever (including lost profits), even if the Escrow Agent has been advised registry of the likelihood of such loss or damage and regardless of the form of action. Should the Escrow Agent become liable for (i) the payment of any TaxesCourt, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled have the right to deduct such Taxeswithdraw from said suit, interest and penalties from the Escrowed Amounts prior to its release all obligations of the Escrowed Amounts in accordance with this Section 2.21Escrow Agent shall cease and terminate.
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Escrow Agent. The Escrow Agent undertakes has agreed to perform only act as such duties for the convenience of the parties without fee or other charges for such services as are expressly set forth in this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be impliedEscrow Agent. The Escrow Agent shall not be subject liable: (a) to any fiduciary of the parties for any act or omission to act except for its own willful misconduct; (b) for any legal effect, insufficiency, or undesirability or any instrument deposited with or delivered by Escrow Agent or exchanged by the parties hereunder, whether or not Escrow Agent prepared such instrument; (c) for any loss or impairment of funds that have been deposited in escrow while those funds are in the course of collection, or while those funds are on deposit in a financial institution, if such loss or impairment results from the failure, insolvency or suspension of a financial institution; (d) for the expiration of any time limit or other implied dutiesconsequences of delay, regardless of whether unless a Default properly executed written instruction, accepted by Escrow Agent, has occurred and is continuing. The instructed Escrow Agent shall not have any duty to take any discretionary comply with said time limit; I for the default, error, action or exercise any discretionary powersomission of either party to the escrow. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to complyAgent, in its capacity as escrow agent, shall be entitled to rely on any document or paper received by it, believed by such Escrow Agent, within good faith, to be bona fide and genuine. In the terms and conditions event of any other agreementdispute as to the disposition of any monies held in escrow, instrument or document between or among of any Loan Party and any Lenderdocuments held in escrow, in connection herewith or otherwise, including any other Loan Document and including the Aleris Merger Agreement, nor shall the Escrow Agent be required may, if such Escrow Agent so elects, interplead the matter by filing an interpleader action in a court of competent jurisdiction in the county or circuit where the Real Property is located (to determine if any Person has complied with the jurisdiction of which both parties do hereby consent), and pay into the registry of the court such monies held by Escrow Agent, or deposit any such agreementsdocuments with respect to which there is a dispute in the registry of such court, nor shall any additional obligations of the whereupon such Escrow Agent shall be inferred relieved and released from the terms of such agreements, except to the extent such provisions are repeated in this Section 2.21 or in the Aleris Increase Joinder Amendment. The any further liability as Escrow Agent may rely upon and hereunder. Escrow Agent shall not be liable for acting or refraining from acting upon any Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by the Designated Company. On the Aleris Increase Joinder Effective Date, the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire 1060441.101066947.03-CHISR01A - MSW into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Person which, in its opinion, conflict with any of the provisions of this Section 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunder or thereunder. The Escrow Agent shall have no liability or obligation with respect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection compliance with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstandinglegal process, in no event shall the Escrow Agent be liablesubpoena, directly or indirectlywrit, for any (x) damagesorder, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect or consequential loss or damage judgment and decree of any kind whatsoever (including lost profits)court, even if the Escrow Agent has been advised of the likelihood of such loss whether issued with or damage and regardless of the form of action. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Accountwithout jurisdiction, and including interest and penalties thereonwhether or not subsequently vacated, modified, set aside or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21reversed.
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Samples: Agreement of Purchase and Sale (Moody National REIT I, Inc.)
