Exculpation and Indemnification of Escrow Agent. 9.1. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof. 9.2. The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto. 9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder. 9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption. 9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6. 9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.
Appears in 7 contracts
Samples: Escrow Agreement (Samdrew I Inc), Escrow Agreement (Samdrew Iii Inc), Escrow Agreement (Samdrew Ii Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice or depositing the Escrow Funds. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderTexas upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The (c) Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company and the Subscribers from and against any and all expenses, including reasonable counsel attorneys' fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, fraud or gross negligence under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term terms "expense or expense" and "loss" shall will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys' fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 6 contracts
Samples: Subscription Agreement (China Bak Battery Inc), Subscription Agreement (China Bak Battery Inc), Subscription Agreement (China Bak Battery Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriter relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriter, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriter, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriter, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriter, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder Investment Gain Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds and Investment Gain Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company and Underwriter from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than ten (10) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 5 contracts
Samples: Indemnification Escrow Agreement (Farmmi, Inc.), Indemnification Escrow Agreement (Senmiao Technology LTD), Indemnification Escrow Agreement (Farmmi, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriter relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriter, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriter, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person party or personsparties hereunder. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties hereunder and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriter, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for otherwise set forth herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person party or persons parties hereunder, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriter, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder Investment Gain Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds and Investment Gain Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company and Underwriter from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than ten (10) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 5 contracts
Samples: Indemnification Escrow Agreement, Indemnification Escrow Agreement (Golden Bull LTD), Indemnification Escrow Agreement (Golden Bull LTD)
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have haven no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, Investors or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64.6.
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companya party to this Agreement, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company a party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 3 contracts
Samples: Escrow Agreement (Go Public Acquisition Corp II), Escrow Agreement (Go Public Acquisition Corp I), Escrow Agreement (Verbena Pharmaceuticals Inc)
Exculpation and Indemnification of Escrow Agent. 9.1(a) The Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent shall will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. (b) The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow AgentAgent hereunder shall be determined solely by the express provisions of this Agreement and no other or further duties or responsibilities shall be implied, as applicableincluding, are affectedbut not limited to, unless it shall give its prior written consent thereto.
9.3any obligation under or imposed by any laws upon fiduciaries. The Escrow Agent shall not be responsible liable, directly or indirectly, for any (i) damages, losses or expenses arising out of the sufficiency services provided hereunder, other than damages, losses or accuracy expenses which have been finally adjudicated to have directly resulted from the Escrow Agent’s gross negligence or willful misconduct, or (ii) special, indirect or consequential damages or losses of any kind whatsoever (including, without limitation, lost profits), even if the Escrow Agent has been advised of the possibility of such losses or damages and regardless of the form ofof action.
(c) The Company and each Stockholder each hereby, or the executionjointly and severally, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall indemnify and hold harmless the Escrow Agent be responsible and any of their principals, partners, agents, employees and affiliates from and against any expenses, including reasonable attorneys’ fees and disbursements, damages or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered losses suffered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such expenses or loss are not as a result of if the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with Agent is guilty of willful misconduct or gross negligence promptly under this Agreement, then the Escrow Agent, will bear all losses, damages and expenses arising as a result of its own willful misconduct or gross negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 8 shall survive the termination of this Agreement, and the resignation or removal of the Escrow Agent.
Appears in 3 contracts
Samples: Share Escrow Agreement, Share Escrow Agreement (Datasea Inc.), Share Escrow Agreement (Datasea Inc.)
Exculpation and Indemnification of Escrow Agent. 9.17.1 The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent will have no duties or responsibilities other than those expressly set forth hereinin this Agreement. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. 7.2 The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. 7.3 The Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of Escrow Agent hereunder; except, that if the Escrow AgentAgent is guilty of willful misconduct, as applicablefraud or gross negligence under this Agreement, hereunderthen the Escrow Agent will bear all losses, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
7.4 The Escrow Agent has acted as legal counsel for the Company and may continue to act as legal counsel for the Company from time to time, notwithstanding its duties as the Escrow Agent hereunder. Investor Representative and the Investors consent to the Escrow Agent in such capacity as legal counsel for the Company and waive any claim that such representation represents a conflict of interest on the part of the Escrow Agent. Investors Representative and the Investors understand that the Escrow Agent is relying explicitly on the foregoing provision in entering into this Escrow Agreement.
Appears in 3 contracts
Samples: Escrow Agreement (Emerald Acquisition CORP), Investor Relations Escrow Agreement (Emerald Acquisition CORP), Escrow Agreement (Emerald Acquisition CORP)
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's Person’s obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons Persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The In the event of any actual or alleged mistake or fraud of the Company, its auditors, the Selling Member or any other Person (other than Escrow Agent) in connection with any information provided to the Escrow Agent hereunder, Escrow Agent shall have no obligation or liability to any party hereunder.
(b) Escrow Agent will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person Person or personsPersons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the State of New York upon fiduciaries.
(c) The Company and the Selling Member each hereby, jointly and severally, indemnify and hold harmless Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agentand its principals, as applicablepartners, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agentagents, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith employees and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company affiliates from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, gross negligence or fraud under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly or fraud. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 8 shall survive the termination of this Agreement.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Alliance MMA, Inc.), Asset Purchase Agreement (Alliance MMA, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. (a) The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. (b) The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. (c) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, Agent has complied with the provisions of Section 2 hereunderhereof.
9.4. (d) The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, Agent does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. (e) To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.69(f) hereof.
9.6. (f) The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, Agent acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.
Appears in 3 contracts
Samples: Escrow Agreement (New England Acquisitions Inc), Escrow Agreement (Atlantic Coastal Properties, Inc.), Escrow Agreement (Lifesciences Opportunities Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriter relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriter, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriter, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person party or personsparties hereunder. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties hereunder and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriter, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for otherwise set forth herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person party or persons parties hereunder, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriter, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder Investment Gain Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds and Investment Gain Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company and the Underwriter from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than 10 business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action, suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 3 contracts
Samples: Indemnification Escrow Agreement (EZGO Technologies Ltd.), Indemnification Escrow Agreement (Elite Education Group International LTD), Indemnification Escrow Agreement (Infobird Co., LTD)
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person other than itself to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any other party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinparties hereto, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company or the Placement Agent or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Placement Agent, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Placement Agent, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds to the Company to the extent due to the Company in accordance with the instructions delivered as set forth in Exhibit C such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless by the Company against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64.6.
9.6. 4.6 The Escrow Agent and Placement Agent will be indemnified and held harmless by the Company from and against any and all expenses, including all reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent or Placement Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent or Placement Agent hereunder, except for claims relating to gross negligence or willful misconduct by Escrow Agent or Placement Agent or breach of this Agreement by the Escrow Agent or Placement Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, Agent or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Placement Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent or Placement Agent, as applicable, shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent or Placement Agent, as applicable, to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent or Placement Agent hereunder. .
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 3 contracts
Samples: Escrow Agreement (Latin America Ventures, Inc.), Escrow Agreement (Golden Elephant Glass Technology, Inc.), Escrow Agreement (China Valves Technology, Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have haven no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company Company, the Placement Agent or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Placement Agent or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Placement Agent or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.4.6
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 3 contracts
Samples: Escrow Agreement (Fushi International Inc), Escrow Agreement (Fushi International Inc), Escrow Agreement (Sino Gas International Holdings, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, any Purchaser or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, any Purchaser or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, any Purchaser or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than three (3) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 3 contracts
Samples: Securities Purchase Agreement (China Wood, Inc.), Public Company Expense Escrow Agreement (Westergaard Com Inc), Investor and Public Relations Escrow Agreement (Westergaard Com Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, any Subscriber or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, any Subscriber or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, any Subscriber or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Public Relations Held-Back Escrowed Portion, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Public Relations Held-Back Escrowed Portion such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 3 contracts
Samples: Investor and Public Relations Escrow Agreement (Southern Sauce Company, Inc.), Investor and Public Relations Escrow Agreement (Forme Capital Inc), Escrow Agreement (Aamaxan Transport Group, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.19.1 The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. 9.2 The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the State of New York upon fiduciaries.
9.3 The Company and the Make Good Shareholder, jointly and severally, hereby indemnify and hold harmless, the Escrow Agent shall have no responsibility with respect to the use by from and against any expenses, including reasonable attorneys’ fees and disbursements, damages or application of any funds or other property paid or delivered losses suffered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of Escrow Agent hereunder; except, that if the Escrow AgentAgent is guilty of willful misconduct, as applicablefraud or gross negligence under this Agreement, hereunderthen the Escrow Agent will bear all losses, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 9 shall survive the termination of this Agreement.
9.4 The Escrow Agent has acted as legal counsel for the Company and may continue to act as legal counsel for the Company from time to time, notwithstanding its duties as the Escrow Agent hereunder. Investor Representative and the Investors consent to the Escrow Agent in such capacity as legal counsel for the Company and waive any claim that such representation represents a conflict of interest on the part of the Escrow Agent. Investors Representative and the Investors understand that the Escrow Agent is relying explicitly on the foregoing provision in entering into this Escrow Agreement.
Appears in 2 contracts
Samples: Make Good Escrow Agreement (Emerald Acquisition CORP), Make Good Escrow Agreement (Emerald Acquisition CORP)
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The (c) Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company and the Stockholders from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, fraud or gross negligence under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Share Escrow Agreement (Neoview Holdings Inc.), Escrow Agreement (Unipro Financial Services Inc)
Exculpation and Indemnification of Escrow Agent. 9.17.1 The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. 7.2 The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. 7.3 The Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company Issuer from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of Escrow Agent hereunder; except, that if the Escrow AgentAgent is guilty of willful misconduct, as applicablefraud or gross negligence under this Agreement, hereunderthen the Escrow Agent will bear all losses, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Investor Relations Escrow Agreement (Weikang Bio-Technology Group Co Inc), Investor Relations Escrow Agreement (CHINA INFRASTRUCTURE CONSTRUCTION Corp)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company or Purchasers or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company or Purchasers or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company or Purchasers or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company Escrowing Parties from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the CompanyCompany or any of the Purchasers, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company such party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Closing Escrow Agreement (Biostar Pharmaceuticals, Inc.), Make Good Escrow Agreement (Biostar Pharmaceuticals, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. (a) The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers Placement Agents relating to the funds received by the Escrow AccountAgent under this Agreement, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. (b) The Escrow Agent shall not be liable to the Company Company, the Selling Stockholders or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. (c) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company Company, the Selling Stockholders or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, Agent has complied with the provisions of Section 2 4(a) hereunder.
9.4. (d) The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, Agent does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the (e) The Escrow Agent becomes liable does not have, for tax reporting purposes, any interest in the payment of taxesEscrowed Property received hereunder but is serving as escrow holder only. The parties hereto agree that, including withholding taxesfor tax reporting purposes, in respect of all interest or other income derived earned from the investment of funds held hereunder the Escrowed Property or any payment made hereunder, portion thereof in any tax year (i) to the extent such interest or other income is distributed by the Escrow AgentAgent to any person or entity pursuant to the terms of this Escrow Agreement during such tax year, shall be reported as applicable, may pay allocated to such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paidperson or entity, and may use the sum withheld for that purpose. The Escrow Agent (ii) otherwise shall be indemnified and held harmless against any liability for taxes and for any penalties or interest reported as allocated to the subscribers, in respect of taxes, proportion to their respective Subscription Payment as set forth on such investment income or payments in the manner provided in Section 9.6Exhibit A hereto.
9.6. (f) The Escrow Agent will be indemnified and held harmless by the Company and the Selling Stockholders from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of except for the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or ’s gross negligence promptly or misconduct. Promptly after the receipt by the Escrow Agent, as applicable, of Agent or notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. .
(g) For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Escrow Agreement (Truett-Hurst, Inc.), Escrow Agreement (Truett-Hurst, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriter relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriter, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriter, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person party or personsparties hereunder. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties hereunder and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriter, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for otherwise set forth herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person party or persons parties hereunder, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriter, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company and Underwriter from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than ten (10) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Indemnification Escrow Agreement (Datasea Inc.), Indemnification Escrow Agreement (Datasea Inc.)
Exculpation and Indemnification of Escrow Agent. 9.16.1 The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent will have no duties or responsibilities other than those expressly set forth hereinin this Agreement. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. 6.2 The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. 6.3 The Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of Escrow Agent hereunder; except, that if the Escrow AgentAgent is guilty of willful misconduct, as applicablefraud or gross negligence under this Agreement, hereunderthen the Escrow Agent will bear all losses, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 6 shall survive the termination of this Agreement.
6.4 The Escrow Agent has acted as legal counsel for the Company and may continue to act as legal counsel for the Company from time to time, notwithstanding its duties as the Escrow Agent hereunder. Investor Representative and the Investors consent to the Escrow Agent in such capacity as legal counsel for the Company and waive any claim that such representation represents a conflict of interest on the part of the Escrow Agent. Investors Representative and the Investors understand that the Escrow Agent is relying explicitly on the foregoing provision in entering into this Escrow Agreement.
Appears in 2 contracts
Samples: Escrow Agreement (Emerald Acquisition CORP), Holdback Escrow Agreement (Expedite 4 Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. (a) The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Purchaser Representative relating to the Company Deposited Shares, the Listing Escrow AccountShares and the Purchaser Deposited Escrow Shares, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinother parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. (b) The Escrow Agent shall not be liable to the Company Company, the Purchaser Representative, any Purchaser or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. (c) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Purchaser Representative, any Purchaser or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. (d) The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Purchaser Representative, any Purchaser or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. (e) The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such any investment income or payments with respect to the Company Deposited Escrow Shares and the Purchaser Deposited Escrow Shares in the manner provided in Section 9.64.2 (f).
9.6. (f) The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result for willful misconduct of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly . Promptly after the receipt by of the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property, including shares of the Company’s capital stock as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
(g) For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Securities Escrow Agreement (China New Energy Group CO), Securities Escrow Agreement (China New Energy Group CO)
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have haven no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company Company, the Placement Agent or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Placement Agent, the Investors or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Placement Agent, Investors or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64.6.
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company and the Placement Agent from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companya party to this Agreement, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company a party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Escrow Agreement (China Security & Surveillance Technology, Inc.), Escrow Agreement (China Security & Surveillance Technology, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriter relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriter, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriter, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person party or personsparties hereunder. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties hereunder and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriter, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for otherwise set forth herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person party or persons parties hereunder, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriter, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder Investment Gain Funds, or any payment made hereunderhereunder (but not for taxes on the Escrow Fee (as defined below) paid to the Escrow Agent), the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds and Investment Gain Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company and the Underwriter from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, or the monies or other property held by it hereunder hereunder, except for claims relating to gross negligence or any income earned from investment reckless misconduct by the Escrow Agent or breach of such monies; provided, that such expenses or loss are not as a result of this Agreement by the Escrow Agent. Promptly, as applicablebut no later than 10 business days, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof and the Underwriter in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action, suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold, for such time as it deems necessary, such amount of monies or property, in an aggregate amount not to exceed the Escrowed Funds, as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Indemnification Escrow Agreement (Oriental Culture Holding LTD), Indemnification Escrow Agreement (Oriental Culture Holding LTD)
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountFunds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any other agreement between any or among the Purchaser and all of the persons referred to hereinCompany, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document or any written instructions from the Escrowing Parties (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Escrowing Parties or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Escrowing Parties or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrow Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrow Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64.6 herein.
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company Escrowing Parties, from and against any and all expenses, as incurred, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, hereunder, Agent hereunder or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the CompanyEscrowing Parties, notify the Company it thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company Escrowing Parties may have to the Escrow Agent hereunder. .
4.7 In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands which, in its opinion, are in conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action, other than to keep safe the purchase information and purchase payments received, until the questions regarding its duties and rights are clarified to its satisfaction or it shall be directed otherwise by a final judgment of a court of competent jurisdiction.
4.8 No provision of this Agreement shall require the Escrow Agent to risk or advance its own funds or otherwise incur any financial liability or potential financial liability in the performance of its duties or the exercise of its rights under this Agreement.
4.9 Notwithstanding any other provision of this Agreement, the Escrow Agent shall not be obligated to perform any obligation hereunder and shall not incur any liability for the nonperformance or breach of any obligation hereunder to the extent that the Escrow Agent is delayed in performing, unable to perform or breaches such obligation because of acts of God, war, terrorism, fire, floods, strikes, electrical outages, equipment or transmission failures, or other causes reasonably beyond its control.
4.10 IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
4.11 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, whether or not the Escrow Agent uses outside counsel or its own attorneys, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Codesmart Holdings, Inc.), Securities Purchase Agreement (First Independence Corp.)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriter relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriter, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriter, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person party or personsparties hereunder. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties hereunder and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriter, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for otherwise set forth herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person party or persons parties hereunder, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriter, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company and Underwriter from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or willful breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than 10 business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action, suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Underwriting Agreement (Prime Skyline LTD), Indemnification Escrow Agreement (JE Cleantech Holdings LTD)
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's Person’s obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons Persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person Person or personsPersons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the State of New York upon fiduciaries.
(c) The Company and the Seller each hereby, jointly and severally, indemnify and hold harmless Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agentand its principals, as applicablepartners, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agentagents, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith employees and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company affiliates from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, gross negligence or fraud under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly or fraud. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 8 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Fight Library Copyright Purchase Agreement (Alliance MMA, Inc.), Fight Library Copyright Purchase Agreement (Alliance MMA, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. The a. Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The b. Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The duties and responsibilities of Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement and no other or further duties or responsibilities shall be implied, including, but not be bound limited to, any obligation under or imposed by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any laws of the terms thereofState of California upon fiduciaries. THE ESCROW AGENT SHALL NOT BE LIABLE, unless evidenced by a writing delivered to DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
c. The Company and the Selling Shareholders each hereby, jointly and severally, indemnify and hold harmless each of Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, and any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentprincipals, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxespartners, including withholding taxesagents, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, employees and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company affiliates from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such expenses or loss are not as a result if Escrow Agent is guilty of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly under this Agreement, then Escrow Agent will bear all losses, damages and expenses arising as a result of its own willful misconduct or gross negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 9 shall survive the termination of this Agreement, and the resignation or removal of Escrow Agent.
Appears in 2 contracts
Samples: Stock Exchange Agreement (Claridge Ventures, Inc.), Escrow Agreement (Indo Global Exchange(s) Pte, Ltd.)
Exculpation and Indemnification of Escrow Agent. 9.1. 6.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade (other than payments or deliveries set forth hereunder), or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Xxxxxx relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any other agreement between any and all of by the persons referred to hereinParties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. The 6.2 Absent gross negligence, willful misconduct, bad faith or fraud by the Escrow Agent, the Escrow Agent shall not be liable to the Company Parties or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. The 6.3 Absent gross negligence, willful misconduct, bad faith or fraud by the Escrow Agent, the Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Escrowing Party or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 6.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Escrowing Party or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 6.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.6.6
9.6. 6.6 The Escrow Agent will be indemnified and held harmless by the Company Escrowing Party from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence, willful misconduct, bad faith or fraud by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly hereunder. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the CompanyEscrowing Party, notify the Company it thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company Escrowing Party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 9.
6.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Escrow Agreement (China Precision Steel, Inc.), Escrow Agreement (China Precision Steel, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1(a) The Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent shall will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. (b) The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person duly authorized representative(s) of the Company and ViewTrade. The duties and responsibilities of the Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement and no other or personsfurther duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws upon fiduciaries. The Escrow Agent shall not be bound by liable, directly or indirectly, for any notice (i) damages, losses or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any expenses arising out of the terms thereofservices provided hereunder, unless evidenced by a writing delivered other than damages, losses or expenses which have been finally adjudicated to have directly resulted from the Escrow Agent’s gross negligence or willful misconduct, as applicableor (ii) special, signed by the proper party indirect or parties andconsequential damages or losses of any kind whatsoever (including, without limitation, lost profits), even if the duties or rights Escrow Agent has been advised of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for the sufficiency possibility of such losses or accuracy damages and regardless of the form ofof action.
(c) The Company and each Shareholder each hereby, or the executionjointly and severally, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall indemnify and hold harmless the Escrow Agent be responsible and any of their principals, partners, agents, employees and affiliates from and against any expenses, including reasonable attorneys’ fees and disbursements, damages or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered losses suffered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such expenses or loss are not as a result of if the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with Agent is guilty of willful misconduct or gross negligence promptly under this Agreement, then the Escrow Agent, will bear all losses, damages and expenses arising as a result of its own willful misconduct or gross negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 8 shall survive the termination this Agreement, and the resignation or removal of the Escrow Agent.
Appears in 2 contracts
Samples: Share Escrow Agreement (Cornerstone Management, Inc.), Share Escrow Agreement
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company Company, any Investor or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, any Investor, the Placement Agent or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, any Investor, the Placement Agent or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.4.6
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
4.7 In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands which, in its opinion, are in conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action, other than to keep safe the subscriptions and subscription payments received, until the questions regarding its duties and rights are clarified to its satisfaction or it shall be directed otherwise by a final judgment of a court of competent jurisdiction.
4.8 No provision of this Agreement shall require the Escrow Agent to risk or advance its own funds or otherwise incur any financial liability or potential financial liability in the performance of its duties or the exercise of its rights under this Agreement.
4.9 Notwithstanding any other provision of this Agreement, the Escrow Agent shall not be obligated to perform any obligation hereunder and shall not incur any liability for the nonperformance or breach of any obligation hereunder to the extent that the Escrow Agent is delayed in performing, unable to perform or breaches such obligation because of acts of God, war, terrorism, fire, floods, strikes, electrical outages, equipment or transmission failures, or other causes reasonably beyond its control.
4.10 IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
4.11 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
4.12 In the event this Agreement, the Escrowed Funds or the Escrow Agent becomes the subject of litigation, or if the Escrow Agent shall desire to do so for any other reason, the Company and the Lead Investor each authorize the Escrow Agent, at its option, to deposit the Escrowed Funds with the clerk of the court in which the litigation is pending, or a court of competent jurisdiction if no litigation is pending, and thereupon the Escrow Agent shall be fully relieved and discharged of any further responsibility with regard thereto. The Company also authorizes the Escrow Agent, if it receives conflicting claims to the Escrow Funds, is threatened with litigation or if the Escrow Agent shall desire to do so for any other reason, to interplead all interested parties in any court of competent jurisdiction and to deposit the Escrowed Funds with the clerk of that court and thereupon the Escrow Agent shall be fully relieved and discharged of any further responsibility hereunder to the parties from which they were received.
Appears in 2 contracts
Samples: Note Purchase Agreement (China SLP Filtration Technology, Inc.), Escrow Agreement (Perpetual Technologies, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have haven no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company Company, the Placement Agent or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Placement Agent or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Placement Agent or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.4.6
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. .
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Escrow Agreement (China Solar & Clean Energy Solutions, Inc.), Escrow Agreement (China Solar & Clean Energy Solutions, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriter relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriter, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriter, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person party or personsparties hereunder. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties hereunder and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriter, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for otherwise set forth herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person party or persons parties hereunder, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriter, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from to the investment of funds held hereunder Investment Gain Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds and Investment Gain Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company and Underwriter from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than ten (10) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Indemnification Escrow Agreement (Mobile Global Esports, Inc.), Indemnification Escrow Agreement (MingZhu Logistics Holdings LTD)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriter relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriter, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriter, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person party or personsparties hereunder. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties hereunder and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriter, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for otherwise set forth herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person party or persons parties hereunder, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriter, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent reasonably estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless to the fullest extent permitted by applicable law by the Company and Underwriter from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or willful breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than 10 business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action, suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 2 contracts
Samples: Indemnification Escrow Agreement (WORK Medical Technology Group LTD), Indemnification Escrow Agreement (WORK Medical Technology Group LTD)
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice or depositing the Escrow Funds. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for governed solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderTexas upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The (c) Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company and the Purchasers from and against any and all expenses, including reasonable counsel attorneys' fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow AgentAgent hereunder; except, as applicablethat if Escrow Agent is guilty of willful misconduct, hereunderfraud or gross negligence under this Agreement, then Escrow Agent will bear all losses, damages and expenses incurred by it, the monies or other property held by it hereunder or any income earned from investment of such monies; providedCompany and each Purchaser, that such expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term terms "expense or expense" and "loss" shall will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys' fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Escrow Agreement (China Agritech Inc), Escrow Agreement (China Agritech Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. The If is understood and agreed that the Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have shall: (a) be under no duty to enforce accept information from any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any Person other act. The Escrow Agent shall be under no liability than either the Purchaser Parties and the Company Parties and then only to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith extent and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall manner provided in this Agreement; (b) be protected in acting upon any order, written notice, demandopinion, request, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent)approval, statement, instrument, report consent or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, it in good faith to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, parties; (c) be deemed conclusively to have given and delivered any notice required to be given or delivered hereunder if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else same is given in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility accordance with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions Section 17 hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall ; (d) be indemnified and held harmless against any liability for taxes jointly and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless severally by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, claim made against it by reason of its acting or loss suffered by the Escrow Agent, as applicable, failing to act in connection with any actionof the transactions contemplated hereby and against any loss, suit liability or other proceeding involving any claimexpense, or in connection with including the expense of defending itself against any claim or demand, which of liability it may sustain in any way, directly or indirectly, arises carrying out the terms of or relates to this Escrow Agreement, the services of the Escrow Agentexcept such claims as are occasioned by its bad faith, as applicablegross negligence, hereunderwillful misconduct, the monies or other property held by it hereunder fraud or any income earned from investment other breach of such moniesfiduciary duty; provided, however, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against any of the Companyother parties hereto, notify the Company each other party thereof in writing; and provided, but further, that the failure indemnitor hereunder shall be entitled, jointly and severally and at their own expense, to participate in and/or assume the defense of any such action, suit or proceeding; (e) have no liability or duty to inquire into the terms and conditions of any agreements to which the Escrow Agent is not a party, its duties under this Agreement being understood to be purely ministerial in nature; (f) be permitted to consult with counsel of its choice selected with reasonable care and shall not be liable for any action taken, suffered or omitted by it in good faith in accordance with the written advice of such counsel; provided, however, that nothing contained in this subsection (f), nor any action taken by the Escrow Agent, as applicableor of any counsel, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent from liability for any claims which are occasioned by its bad faith, gross negligence, willful misconduct, fraud or any other breach of fiduciary duty, all as provided in subsection (d) above; (g) not be bound by any modification, amendment, termination, cancellation, rescission or supersession of this Agreement, unless the same shall be in writing and signed by the parties hereto; (h) if and to the extent it is uncertain as to its duties and rights hereunder. For , be entitled to refrain from taking any action other than to keep all property held by it in escrow until it shall be directed otherwise in a joint writing by the purposes Purchaser Parties and the Company Parties, in accordance with this Agreement, or by a final judgment of a court or arbitrator of competent jurisdiction; (i) have no liability for any act or omission done pursuant to the instructions contained or expressly provided for herein, or written instructions given by joint instructions of the Purchaser Parties and the Company Parties pursuant hereto; (j) have the right, at any time, to resign hereunder by giving written notice of its resignation to the Purchaser Parties and the Company Parties, in accordance with Section 17 hereof, at least thirty (30) business days prior to the term "expense or loss" date specified for such resignation to take effect; in which case, upon the effective date of such resignation: (i) all cash and other payments and all other property then held by the Escrow Agent hereunder shall include all amounts paid or payable be delivered by it to satisfy any claimsuch Person as may be designated jointly in writing by the Purchaser Parties and the Company Parties, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of whereupon the Escrow Agent's obligations hereunder shall cease and terminate; (ii) if no such Person has been designated by such date, the Escrow Agent's sole responsibility thereafter shall be to keep all property then held by it and to deliver the same to a Person designated jointly in writing by the Purchaser Parties and the Company Parties, or, if no such Person shall have been so designated, in accordance with the directions of a final order or judgment of a court of competent jurisdiction, and the provisions of subsections (f), (j) and (k) of this Section 8 shall remain in effect; and (k) be reimbursed upon its request for all costs and reasonable expenses, includingdisbursements and advances incurred or made by it in accordance with any provisions of this Agreement, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against except any such claimsexpenses, demanddisbursements or advances as may be attributable to its gross negligence, actionwillful misconduct (including breach of this Agreement), suit bad faith, fraud or proceedingother breach of fiduciary duty. All reimbursements pursuant to this Section 8(k) shall be made by the Company.
(l) The Escrow Agent shall not be entitled to indemnification from the Escrow Fund for any indemnification required by this Section 8. 9. [INTENTIONALLY OMITTED] 10.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice or depositing the Escrow Funds. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderTexas upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The (c) Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel attorneys' fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, fraud or gross negligence under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of such willful misconduct, fraud or gross negligence. For this purpose, the term "attorneys' fees" includes fees payable to any counsel retained by the Escrow AgentAgent in connection with its services under this agreement and, with respect to any matter arising under this agreement as applicableto which the Escrow Agent performs legal services, acting, or omitting to take action, its standard hourly rates and charges then in bad faith or with willful misconduct or gross negligence promptly effect. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term terms "expense or expense" and "loss" shall will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys' fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriters relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriters, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriters, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person party or personsparties hereunder. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties hereunder and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriters, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for otherwise set forth herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person party or persons parties hereunder, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriters, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, the monies except for claims relating to gross negligence or other property held willful misconduct by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent. Promptly, as applicablebut no later than ten (10) business days, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. , unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Indemnification Escrow Agreement (HiTek Global Inc.)
Exculpation and Indemnification of Escrow Agent. 9.16.1. The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations under any such document. Except to the extent specifically provided for amendments in this Agreement, Escrow Agent is not obligated to render any statements or notices of non-performance hereunder to any party but may, in its discretion, inform any party of any matters pertaining to this Agreement referred to belowAgreement, and except for instructions provided such information is also given to the other parties and their counsel. Escrow Agent by the Company shall not be charged with knowledge of any fact, including but not limited to performance or non-performance of any condition herein, unless it has actually received written notice thereof. Except for this Agreement and the subscribers relating instructions to Escrow Agent pursuant to the terms of this Agreement, Escrow Account, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between any and or all of the persons referred to hereinparties, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof. Without limiting the foregoing, Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of any Escrow Funds, or any loss of interest incident to any such delays.
9.26.2. The In the event of any disagreement or the presentation of adverse claims or demands in connection with the Escrow Assets, Escrow Agent shall, at its option, be entitled to (a) implead the Escrow Assets in any court having jurisdiction thereof; or (b) refuse to comply with any such claims or demands during the continuance of such disagreement and may refrain from delivering any item affected thereby. As a result of such action or inaction, Escrow Agent shall not become liable to GSI or the Shareholders, or to any other person, due to its failure to comply with any such adverse claim or demand. Escrow Agent shall be entitled to continue, without liability, to refrain and refuse to act:
6.2.1. Until all the rights of the adverse claimants have been finally adjudicated by a court or panel of arbitrators having jurisdiction over the parties and the items affected thereby, after which time the Escrow Agent shall be entitled to act in conformity with such adjudication; or
6.2.2. Until all differences shall have been adjusted by agreement and Escrow Agent shall have been notified thereof and shall have been directed in writing signed jointly or in counterpart by GSI and the Shareholders and by all persons making adverse claims or demands, at which time Escrow Agent shall be protected in acting in compliance therewith.
6.3. Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent. Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentaccordance with such advice. The Escrow Agent may rely conclusively and shall be protected in acting upon any orderon Txxxxx to serve as the Shareholders’ representative.
6.4. The bankruptcy, notice, demand, certificate, opinion insolvency or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability absence of any information therein contained), which is believed by the Escrow Agent, as applicable, to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent of party shall not be bound by any notice affect or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered prevent performance by the Escrow Agent pursuant of its obligations and instructions hereunder.
6.5. Except with respect to the provisions hereof. The Escrow Agent shall not be liable to the Company claims based upon such gross negligence or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the willful misconduct that are successfully adjudicated against Escrow Agent, as applicableGSI and the Shareholders, has complied with the provisions of Section 2 hereunder.
9.4. The jointly and severally, shall indemnify and hold harmless Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expensesfees, costs, expenses (including reasonable counsel fees and disbursements), claims, damages or loss losses suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, or the monies or filing by Escrow Agent of any action related to this Agreement, other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not than as a result of Escrow Agent’s gross negligence or willful misconduct. As between GSI and the Shareholders, the party, if any, which unreasonably causes the Escrow Agent to incur expenses shall bear those expenses. If neither party is at fault, the costs shall be paid one-half by GSI and one-half by the Shareholders (pro-rata among them in proportion to their respective shares of the Escrow Shares held hereunder when those costs were first incurred).
6.6. Escrow Agent does not have any interest in the Escrow Assets deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from this escrow shall be subject to withholding regulations then in force with respect to United States taxes. The parties will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or non-resident alien certifications. This Section shall survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
6.7. Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
6.8. Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
6.9. GSI and the Shareholders hereby authorize Escrow Agent, as applicablefor any securities held hereunder, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after use the receipt by the Escrow Agent, as applicable, of notice services of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expensesUnited States central securities depository it reasonably deems appropriate, including, but not limited towithout limitation, reasonable counsel fees the Depository Trust Company and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceedingthe Federal Reserve Book Entry System.
Appears in 1 contract
Samples: Escrow Agreement (Tisone Thomas C)
Exculpation and Indemnification of Escrow Agent. 9.1. The It is understood and agreed that Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have shall:
(a) be under no duty to enforce any obligation of accept information from any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability than the City and Pennichuck and then only to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith extent and in the exercise of its own best judgment. The manner provided in this Escrow Agent may rely conclusively and shall Agreement;
(b) be protected in acting upon any order, written notice, demandopinion, request, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent)approval, statement, instrument, report consent or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, it to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, parties;
(c) be deemed conclusively to have given and delivered any notice required to be given or delivered hereunder if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.same is given in accordance with Section 11 hereof;
9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall (d) be indemnified and held harmless jointly and severally by the City and Pennichuck against any liability for taxes and for any penalties claim made against it by reason of its acting or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, failing to act in connection with any actionof the transactions contemplated hereby and against any loss, suit liability or other proceeding involving any claimexpense, or in connection with including the expense of defending itself against any claim or demand, which of liability it may sustain in any way, directly or indirectly, arises carrying out the terms of or relates to this Escrow Agreement, the services of the Escrow Agentexcept such claims as are occasioned by its bad faith, as applicablegross negligence, hereunderwillful misconduct, the monies or other property held by it hereunder fraud or any income earned from investment breach of such moniesfiduciary duty; provided, however, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against any of the Companyother parties hereto, notify the Company each other party thereof in writing; and provided, but further, that the failure by the Escrow Agentindemnitors hereunder shall be entitled, as applicablejointly or severally and at their own expense, to give such notice shall not relieve participate in and/or assume the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement defense of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.;
Appears in 1 contract
Samples: Merger Agreement (Pennichuck Corp)
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person other than itself to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any other party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow AccountEscrowed Shares, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinparties hereto, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company parties hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto hereto, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Shares pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. 4.5 The Escrow Agent will be indemnified and held harmless by the Company other parties hereto from and against any and all expenses, including all reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, the monies except for claims relating to gross negligence or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct by Escrow Agent or gross negligence promptly after the receipt breach of this Agreement by the Escrow Agent, as applicable, of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure property held by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent it hereunder. .
4.6 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Escrow Agreement (SMSA El Paso II Acquisition Corp)
Exculpation and Indemnification of Escrow Agent. 9.19.1 The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. 9.2 The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. 9.3 The Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company and the Stockholders from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of Escrow Agent hereunder; except, that if the Escrow AgentAgent is guilty of willful misconduct, as applicablefraud or gross negligence under this Agreement, hereunderthen the Escrow Agent will bear all losses, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 9 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Securities Escrow Agreement (China Advanced Construction Materials Group, Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriter relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriter, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriter, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person party or personsparties hereunder. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties hereunder and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriter, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for otherwise set forth herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person party or persons parties hereunder, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriter, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder Investment Gain Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds and Investment Gain Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company and Underwriter from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than 10 business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action, suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Indemnification Escrow Agreement (Blue Hat Interactive Entertainment Technology)
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The duties and responsibilities of Escrow Agent hereunder shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed determined solely by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The (c) Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company and Xxxxx from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, fraud or gross negligence under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. (a) The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s obligations under any such document. Except for (i) amendments to this Agreement referred to below, below and except for (ii) instructions given to the Escrow Agent by the Company and the subscribers Underwriters relating to the funds received by the Escrow AccountAgent under this Agreement, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. (b) The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. (c) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, Agent has complied with the provisions of Section 2 4(a) hereunder.
9.4. (d) The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, Agent does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the (e) The Escrow Agent becomes liable does not have, for tax reporting purposes, any interest in the payment of taxesEscrowed Property received hereunder but is serving as escrow holder only. The parties hereto agree that, including withholding taxesfor tax reporting purposes, in respect of all interest or other income derived earned from the investment of funds held hereunder the Escrowed Property or any payment made hereunder, portion thereof in any tax year (i) to the extent such interest or other income is distributed by the Escrow AgentAgent to any person or entity pursuant to the terms of this Escrow Agreement during such tax year, shall be reported as applicable, may pay allocated to such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paidperson or entity, and may use the sum withheld for that purpose. The Escrow Agent (ii) otherwise shall be indemnified and held harmless against any liability for taxes and for any penalties or interest reported as allocated to the subscribers, in respect of taxes, proportion to their respective Subscription Payment as set forth on such investment income or payments in the manner provided in Section 9.6Exhibit A hereto.
9.6. (f) The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of except for the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or ’s gross negligence promptly or misconduct. Promptly after the receipt by the Escrow Agent, as applicable, of Agent or notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. .
(g) For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1(1) The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice or depositing the escrow securities.
(2) The Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. (3) The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderCalifornia upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. (4) The Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company Issuer and the Securityholders from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if the Escrow Agent is guilty of willful misconduct, fraud or gross negligence under this Agreement, then the Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 8.2 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Escrow Agreement
Exculpation and Indemnification of Escrow Agent. 9.17.1 The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such documentdocument other than as provided in this Agreement. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. 7.2 The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. 7.3 The Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company and the Stockholder from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of Escrow Agent hereunder; except, that if the Escrow AgentAgent is guilty of willful misconduct, as applicablefraud or gross negligence under this Agreement, hereunderthen the Escrow Agent will bear all losses, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement (other than the Purchase Agreement) out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice or depositing the Escrow Funds. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderTexas upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The (c) Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company and the Selling Stockholders from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, fraud or gross negligence under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement (other than the Purchase Agreement) out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice or depositing the Escrowed Funds. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations hereunder or under any such document. Except for amendments to this Agreement referred and the Joint Instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder[New York] upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The (c) Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel attorneys' fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, fraud or gross negligence under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term terms "expense or expense" and "loss" shall will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys' fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 5 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (SMSA Palestine Acquistion Corp.)
Exculpation and Indemnification of Escrow Agent. 9.1(a) The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice or depositing the Shares. The Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. (b) The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. (c) The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel attorneys' fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow AgentAgent hereunder; except, as applicable, hereunder, to the monies or other property held by it hereunder or any income earned from investment of such monies; provided, extent that such expenses or loss are not as a result of the Escrow AgentAgent is guilty of willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly under this Agreement. For this purpose, the term "attorneys' fees" includes fees payable to any counsel retained by the Escrow Agent in connection with its services under this Agreement and, with respect to any matter arising under this Agreement as to which the Escrow Agent performs legal services, its standard hourly rates and charges then in effect. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.any
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. The 5.1 Escrow Agent shall have no duties or responsibilities other than except those that are expressly set forth herein. The .
5.2 Escrow Agent shall have no duty to enforce any obligation hereunder unless and until it has received counterpart(s) of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation this Agreement bearing signatures of any person to perform any other act. The the REIT and RF.
5.3 Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, written notice, demandaffidavit, certificaterequest, opinion or advice of counsel (including counsel chosen by the Escrow Agent)waiver, statementconsent, instrument, report receipt or other paper or document (furnished to it, not only as to in assuming its due execution and the validity and effectiveness of its provisions, provisions but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, it in good faith believes to be genuine and what it purports to be signed or presented by the proper person or persons. The be.
5.4 In addition to any other protections of Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which error of judgment, mistake of fact or law, or action of any kind taken or omitted to be taken hereunder if (i) in good faith reasonably believed by it to be in accordance with the provisions and intent hereof or (ii) otherwise not constituting gross negligence or willful misconduct by Escrow Agent.
5.5 The REIT and RF hereby agree to jointly and severally indemnify Escrow Agent and each of its owners (partners), employees, and agents (“Indemnified Persons”) against all claims, demands, liabilities, losses, and expenses, including reasonable attorneys’ fees, that may at any time be incurred by reason or asserted against any of the Indemnified Persons relating to this Agreement, any transaction contemplated hereby, or any act or omission by or on behalf of Escrow Agent hereunder, except to the extent directly resulting from Escrow Agent’s gross negligence or willful misconduct.
5.6 If Escrow Agent is uncertain as to the proper disposition of any investment of any monies which it holds hereunder provided the escrowed funds, Escrow AgentAgent in its sole discretion may deposit the escrowed funds with a court of competent jurisdiction, together with such pleadings as applicableEscrow Agent deems appropriate, has complied with the provisions of Section 2 hereunder.
9.4. The whereupon Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made no further obligation hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified reimbursed out of the escrowed funds (without prejudice to any rights or remedies that the REIT or RF may have against each other) for all costs and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, expenses incurred in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, of notice of any demand or claim or the commencement of any action, suit action or proceeding, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited towithout limitation, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceedingdisbursements through all investigations and proceedings.
Appears in 1 contract
Samples: Escrow Agreement (Industrial Logistics Realty Trust Inc.)
Exculpation and Indemnification of Escrow Agent. 9.14.1. The Escrow Agent shall have haven no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.24.2. The Escrow Agent shall not be liable to the Company Company, the Placement Agent or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.34.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Placement Agent or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.44.4. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Placement Agent or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.54.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64.6.
9.64.6. The Escrow Agent will be indemnified and held harmless by the Company and the Placement Agent from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
4.7. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. 5.
Appears in 1 contract
Samples: Escrow Agreement (Yongye Biotechnology International, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person other than itself to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any other party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinparties hereto, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company or the Investment Agent or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Investment Agent, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Investment Agent, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds to the Company to the extent due to the Company in accordance with the instructions delivered as set forth in Exhibit C such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless by the Company against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64.6.
9.6. 4.6 The Escrow Agent and Investment Agent will be indemnified and held harmless by the Company from and against any and all expenses, including all reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent or Investment Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent or Investment Agent hereunder, except for claims relating to gross negligence or willful misconduct by Escrow Agent or Investment Agent or breach of this Agreement by the Escrow Agent or Investment Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, Agent or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Investment Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent or Investment Agent, as applicable, shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent or Investment Agent, as applicable, to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent or Investment Agent hereunder. .
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Closing Escrow Agreement (THT Heat Transfer Technology, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Subscriber Representative, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Subscriber Representative, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Subscriber Representative, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Investor Relations Held-Back Escrowed Portion, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Investor Relations Held-Back Escrowed Portion such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Investor and Public Relations Escrow Agreement (Weikang Bio-Technology Group Co., Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. 6.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade (other than payments or deliveries set forth hereunder), or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Xxxxxx relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any other agreement between any and all of by the persons referred to hereinParties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. The 6.2 Absent gross negligence, willful misconduct, bad faith or fraud by the Escrow Agent, the Escrow Agent shall not be liable to the Company Parties or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. The 6.3 Absent gross negligence, willful misconduct, bad faith or fraud by the Escrow Agent, the Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Seller or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 6.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Seller or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 6.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.6.6
9.6. 6.6 The Escrow Agent will be indemnified and held harmless by the Company Seller from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence, willful misconduct, bad faith or fraud by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly hereunder. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the CompanySeller, notify the Company it thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company Seller may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 9.
6.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. The a. Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Escrow Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations hereunder or under any such document. Except for amendments this Escrow Agreement and instructions to this Agreement referred to below, and except for instructions given Escrow Agent pursuant to the terms of this Escrow Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The duties and responsibilities of the Escrow Agent hereunder shall not be bound determined solely by any notice or demand, or any waiver, modification, termination or rescission the express provisions of this Escrow Agreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights State of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent theretoNew York upon fiduciaries.
9.3. b. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall Company hereby indemnifies and holds harmless the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in and any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentprincipals, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxespartners, including withholding taxesagents, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, employees and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company affiliates from and against any and all expenses, including reasonable counsel attorneys' fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, gross negligence or fraud under this Escrow Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly or fraud. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys' fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section shall survive the termination of this Escrow Agreement.
Appears in 1 contract
Samples: Escrow Agreement (Worldwide Energy & Manufacturing Usa Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice or depositing the Escrow Funds. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The (c) Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, fraud or gross negligence under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of such willful misconduct, fraud or gross negligence. For this purpose, the term “attorneys’ fees” includes fees payable to any counsel retained by the Escrow AgentAgent in connection with its services under this agreement and, with respect to any matter arising under this agreement as applicableto which the Escrow Agent performs legal services, acting, or omitting to take action, its standard hourly rates and charges then in bad faith or with willful misconduct or gross negligence promptly effect. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
(d) The Investors acknowledge that they know that the Escrow Agent has represented the Company in connection with this Agreement and that it may continue to represent the Company in that connection and in connection with the transactions contemplated by this agreement and the Securities Purchase Agreement and other transactions, including, but not limited to, in connection with any disputes that may arise under any such agreements or transactions. The Escrow Agent shall not be precluded from or restricted in any way from representing the Company or any of its affiliates or otherwise acting as attorneys for the Company or any of its affiliates in any matter, except for any legal proceeding or other matter related to this Agreement. The Escrow Agent shall be permitted to represent the Company in any and all legal matters pertaining to, the Securities Purchase Agreement and the Company’s other transactions, whether or not there is a dispute between the Investors and the Company with respect to any such matter. The Investors irrevocably consent to any such representation and waive any conflict or appearance of conflict with respect to any such representation.
Appears in 1 contract
Samples: Escrow Agreement (China Security & Surveillance Technology, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriter relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriter, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriter, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person party or personsparties hereunder. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties hereunder and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. The c. Absent clear evidence of manifest fraud or willful misconduct, the Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriter, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for otherwise set forth herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person party or persons parties hereunder, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriter, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder Investment Gain Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds and Investment Gain Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company and the Underwriter from and against any all reasonable and all customary expenses, including all reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than 10 business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action, suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. The 6.1 Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations under any such document. Except to the extent specifically provided for amendments in this Agreement, Escrow Agent is not obligated to render any statements or notices of non-performance hereunder to any party hereto but may, in its discretion, inform any party hereto of any matters pertaining to this Agreement, provided such information is also given to the other parties to this Agreement referred and their counsel. Escrow Agent shall not be charged with knowledge of any fact, including but not limited to belowperformance or non-performance of any condition herein, unless it has actually received written notice thereof. Except for this Agreement and except for the instructions given to Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between any and or all of the persons referred to hereinparties hereto, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof. Without limiting the foregoing, Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of any Escrow Funds, or any loss of interest incident to any such delays.
9.26.2 In the event of any disagreement or the presentation of adverse claims or demands in connection with the Escrow Assets, Escrow Agent shall, at its option, be entitled to (i) implead the Escrow Assets in any court having jurisdiction thereof; or (ii) refuse to comply with any such claims or demands during the continuance of such disagreement and may refrain from delivering any item affected thereby. The As a result of such action or inaction, Escrow Agent shall not be become liable to Bingxxx xx the Company Shareholders, or to anyone else for any action taken or omitted by itother person, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as due to its due execution and the validity and effectiveness of its provisions, but also as failure to the truth and acceptability of comply with any information therein contained), which is believed by the Escrow Agent, as applicable, to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice such adverse claim or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxesentitled to continue, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicablewithout liability, to give such notice shall not relieve the Company from any liability which the Company may have refrain and refuse to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.act:
Appears in 1 contract
Samples: Escrow Agreement (Shiffman Milton M)
Exculpation and Indemnification of Escrow Agent. 9.1. 5.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed, funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 5.2 The Escrow Agent shall not be liable to the Company any party hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 5.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or of application of any the Escrowed funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 5.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 5.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be he indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.5.6
9.6. 5.6 The Escrow Agent will be indemnified and held harmless by the Company each Escrowing Party from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement, by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. , notwithstanding any obligation to make payments of monies as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 5.
5.7 For the purposes purpose hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. The It is understood and agreed that Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have shall:
(a) be under no duty to enforce any obligation of accept information from any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability than the City and Pennichuck and then only to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith extent and in the exercise of its own best judgment. The manner provided in this Escrow Agent may rely conclusively and shall Agreement;
(b) be protected in acting upon any order, written notice, demandopinion, request, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent)approval, statement, instrument, report consent or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, it to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, parties;
(c) be deemed conclusively to have given and delivered any notice required to be given or delivered hereunder if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.same is given in accordance with Section 11 hereof;
9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall (d) be indemnified and held harmless jointly and severally by the City and Pennichuck against any liability for taxes and for any penalties claim made against it by reason of its acting or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, failing to act in connection with any actionof the transactions contemplated hereby and against any loss, suit liability or other proceeding involving any claimexpense, or in connection with including the expense of defending itself against any claim or demand, which of liability it may sustain in any way, directly or indirectly, arises carrying out the terms of or relates to this Escrow Agreement, the services of the Escrow Agentexcept such claims as are occasioned by its bad faith, as applicablegross negligence, hereunderwillful misconduct, the monies or other property held by it hereunder fraud or any income earned from investment breach of such moniesfiduciary duty; provided, however, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against any of the Companyother parties hereto, notify the Company each other party thereof in writing; and provided, but further, that the failure by the Escrow Agentindemnitors hereunder shall be entitled, as applicablejointly or severally and at their own expense, to give such notice shall not relieve participate in and/or assume the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement defense of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding;
(e) have no liability or duty to inquire into the terms and conditions of any agreements to which Escrow Agent is not a party, its duties under this Escrow Agreement being understood to be purely ministerial in nature;
(f) be permitted to consult with counsel of its choice and shall not be liable for any action taken, suffered or omitted by it in good faith in accordance with the written advice of such counsel; provided, however, that nothing contained in this subsection (f), nor any action taken by Escrow Agent, or of any counsel, shall relieve Escrow Agent from liability for any claims which are occasioned by its bad faith, gross negligence, willful misconduct, fraud or any breach of fiduciary duty, all as provided in subsection (d) above;
(g) not be bound by any modification, amendment, termination, cancellation, rescission or supersession of this Escrow Agreement, unless the same shall be in writing and signed by all of the parties hereto;
(h) if and to the extent it is uncertain as to its duties and rights hereunder, be entitled to refrain from taking any action other than to keep all property held by it in escrow until it shall be directed otherwise in a joint writing by the City and Pennichuck, in accordance with this Escrow Agreement, or by a final judgment of a court of competent jurisdiction;
(i) have no liability for any act or omission done pursuant to the instructions contained or expressly provided for herein, or written instructions given by joint instructions of the City and Pennichuck pursuant hereto;
(j) have the right, at any time, to resign hereunder by giving written notice of its resignation to the City and Pennichuck, at their addresses set forth below, at least 30 Business Days prior to the date specified for such resignation to take effect; in which case, upon the effective date of such resignation:
(i) the Withdrawal Notice shall be delivered by it to such person as may be designated jointly in writing by the City and Pennichuck, whereupon Escrow Agent’s performance obligations hereunder shall cease and terminate; and
(ii) if no such person has been designated by such date, Escrow Agent’s sole responsibility thereafter shall be to keep all property then held by it and to deliver the same to a person designated jointly in writing by the City and Pennichuck, or, if no such person shall have been so designated, in accordance with the directions of a final order or judgment of a court of competent jurisdiction, and the provisions of subsections (f) and (j) of this Section 7 shall remain in effect.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties any party hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to below, and except for joint written instructions given to the Escrow Agent by the Company Lead Investor and the subscribers Company relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among the Company and any and all of the persons referred to hereinother party, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company and the Investors or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company or the Investors or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.4.6
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, expenses (including reasonable all counsel fees and disbursements, ) or loss losses suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly hereunder. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.18.1 The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. 8.2 The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. 8.3 The Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company Issuer and the Placement Agent from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of Escrow Agent hereunder; except, that if the Escrow AgentAgent is guilty of willful misconduct, as applicablefraud or gross negligence under this Agreement, hereunderthen the Escrow Agent will bear all losses, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 8 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Escrow Agreement (China Advanced Construction Materials Group, Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. (a) The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act, and shall have no duty to accept in escrow the Notes or enforce any obligation with respect to such Notes. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. (b) The Escrow Agent shall not be liable to the Company Escrowing Parties or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. (c) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Escrowing Parties or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. (d) The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Escrowing Parties or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. (e) The Escrow Agent will be indemnified and held harmless by the Company Escrowing Parties from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 2.
(f) For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Subscription and Escrow Agreement (Global Roaming Distribution, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. The a. Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Escrow Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations hereunder or under any such document. Except for amendments this Escrow Agreement and instructions to this Agreement referred to below, and except for instructions given Escrow Agent pursuant to the terms of this Escrow Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The duties and responsibilities of the Escrow Agent hereunder shall not be bound determined solely by any notice or demand, or any waiver, modification, termination or rescission the express provisions of this Escrow Agreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights State of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent theretoNew York upon fiduciaries.
9.3. b. The Escrow Agent shall not be responsible for Company and the sufficiency or accuracy of the form ofMake Good Pledgors each hereby, or the executionjointly and severally, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall indemnify and hold harmless the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in and any respect on account of the identitytheir principals, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for hereinpartners, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agentagents, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith employees and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company affiliates from and against any and all expenses, including reasonable counsel attorneys' fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, gross negligence or fraud under this Escrow Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly or fraud. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term terms "expense or expense" and "loss" shall will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys' fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section shall survive the termination of this Escrow Agreement.
Appears in 1 contract
Samples: Escrow Agreement (Worldwide Energy & Manufacturing Usa Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The (c) Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company and Tu from and against any and all expenses, including reasonable counsel attorneys' fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, fraud or gross negligence under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term terms "expense or expense" and "loss" shall will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys' fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Escrow Agreement (China Security & Surveillance Technology, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Placement Agent relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Placement Agent, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Placement Agent, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Placement Agent, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Placement Agent, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder Investment Gain Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds and Investment Gain Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company and Placement Agent from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than ten (10) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Indemnification Escrow Agreement (China Customer Relations Centers, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Make Good Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations hereunder or under any such document. Except for amendments this Make Good Agreement and instructions to this Agreement referred to below, and except for instructions given Escrow Agent pursuant to the terms of this Make Good Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this AgreementMake Good Agreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the State of New York upon fiduciaries. Except as specifically provided for hereinTHE ESCROW AGENT SHALL NOT BE LIABLE, the DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
(c) The Company and Make Good Pledgor each hereby, jointly and severally, indemnify and hold harmless each of Escrow Agent shall have no responsibility with respect to the use or application and any of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agenttheir principals, as applicablepartners, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agentagents, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith employees and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company affiliates from and against any and all expenses, including reasonable counsel attorneys' fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Make Good Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such expenses or loss are not as a result if Escrow Agent is guilty of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly under this Make Good Agreement, then Escrow Agent will bear all losses, damages and expenses arising as a result of its own willful misconduct or gross negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term terms "expense or expense" and "loss" shall will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys' fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 8 shall survive the termination of this Make Good Agreement, and the resignation or removal of the Escrow Agent.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. 10.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. 10.2 The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 10.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, Agent has complied with the provisions of Section 2 hereunder.
9.4. 10.4 The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, Agent does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 10.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.610.6.
9.6. 10.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, Agent acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Escrow Agreement (Greengate Corp)
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers ABM relating to the Escrow AccountEscrowed funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any other agreement between any and all of or among ABM and/or the persons referred to hereinCompany, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to ABM or the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to ABM and/or the other parties hereto Company or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to ABM and/or the other parties hereto Company or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64.6.
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by ABM and/or the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against ABM and/or the Company, notify the Company it thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which ABM and/or the Company may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, any Purchaser or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, any Purchaser or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, any Purchaser or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Public Relations Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Public Relations Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than three (3) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Investor and Public Relations Escrow Agreement (Lihua International Inc.)
Exculpation and Indemnification of Escrow Agent. 9.18.1 The Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent shall will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
8.2 The Escrow Agent will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the State of New York upon fiduciaries.
8.3 The Company and the Make Good Shareholder, jointly and severally, hereby indemnify and hold harmless, the Escrow Agent shall have no responsibility with respect to the use by from and against any expenses, including reasonable attorneys’ fees and disbursements, damages or application of any funds or other property paid or delivered losses suffered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of Escrow Agent hereunder; except, that if the Escrow AgentAgent is guilty of willful misconduct, as applicablefraud or gross negligence under this Agreement, hereunderthen the Escrow Agent will bear all losses, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 8.3 shall survive the termination of this Agreement.
8.4 If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Shares (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrow Shares ) (an “Order”), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate, provided, that the Escrow Agent shall immediately provide notice to the Company, the Placement Agent, and the Investor Representative of such Order, and, to the extent permitted under the Order, shall defer compliance with the Order until the Company, the Placement Agent, and the Investor Representative have had an opportunity to dispute, appeal, or otherwise challenge such Order. If the Escrow Agent complies with any such Order after complying with all other requirements under this Section 8.4, Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity even though such Order may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
8.5 The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility), except to the extent that it failed to act reasonably to avoid or restrict the effect of any such occurrence on its duties, obligations, and responsibilities hereunder.
8.6 The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
8.7 When the Escrow Agent acts on any information, instructions, communications (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication (whether due to fraud, distortion or otherwise). In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Shares, unless the Escrow Agent receives written instructions, signed by the Investor Representative and Make Good Shareholder which eliminates such ambiguity or uncertainty.
8.8 The Escrow Agent does not have any interest in the Escrow Shares deposited hereunder but is serving as escrow holder only and having only possession thereof. The Company shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Shares that are incurred and are required to be incurred pursuant to the terms and provisions of this Agreement and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent shall only be responsible for income reporting with respect to income earned on the Escrow Shares and will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent.
8.9 Escrow Agent may generally engage in any kind of business with the Company, the Investor Representative, the Make Good Shareholder or any participant in the Offering or any subsidiary or affiliate thereof as if it had not entered into this Agreement or any other agreement with them. Escrow Agent and its affiliates and their officers, directors, employees, and agents (including legal counsel) may now or hereafter be engaged in one or more transactions with the Company, the Investor Representative, the Make Good Shareholder or any participant in the Offering or any subsidiary or affiliate thereof or may act as trustee, agent or representative of either the foregoing parties or otherwise be engaged in other transactions with such parties (collectively, the “Other Activities”). Without limiting the foregoing, Escrow Agent and its affiliates and their officers, directors, employees, and agents (including legal counsel) shall not be responsible to account to the Company, the Investor Representative, the Make Good Shareholder or any participant in the Offering or any subsidiary or affiliate thereof for such Other Activities.
Appears in 1 contract
Samples: Make Good Escrow Agreement (Dragon Acquisition CORP)
Exculpation and Indemnification of Escrow Agent. 9.1. The a. Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Make Good Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations hereunder or under any such document. Except for amendments this Make Good Agreement and instructions to this Agreement referred to below, and except for instructions given Escrow Agent pursuant to the terms of this Make Good Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The Escrow Agent is not charged with any obligation to conduct any investigation into the financial reports or make any other investigation related thereto. In the event of any actual or alleged mistake or fraud of the Company, its auditors or any other person (other than Escrow Agent) in connection with such financial reports of the Company, Escrow Agent shall have no obligation or liability to any party hereunder.
b. Escrow Agent will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this AgreementMake Good Agreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the State of New York upon fiduciaries. Except as specifically provided for hereinTHE ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
c. The Company and the Make Good Pledgor hereby, jointly and severally, indemnify and hold harmless each of Escrow Agent shall have no responsibility with respect to the use or application of and any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentprincipals, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxespartners, including withholding taxesagents, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, employees and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company affiliates from and against any and all expenses, including reasonable counsel attorneys' fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit Agent or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Make Good Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such expenses or loss are not as a result if Escrow Agent is guilty of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly under this Make Good Agreement, then Escrow Agent will bear all losses, damages and expenses arising as a result of its own willful misconduct or gross negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, Escrow Agent as the Escrow Agentcase may be, as applicable, shall, if a claim in respect thereof is to be made against the Company, will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term terms "expense or expense" and "loss" shall will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys' fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 8 shall survive the termination of this Make Good Agreement, and the resignation or removal of the Escrow Agent.
d. If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Shares (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrow Shares), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
e. The Escrow Agent may consult with legal counsel of its own choosing as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
f. The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
g. The Escrow Agent shall not be called upon to advise any party as to the wisdom in retaining or taking or refraining from any action with respect to the Escrow Shares deposited hereunder.
h. Escrow Agent may generally engage in any kind of business with the Company, the Agent, Investor or Make Good Pledgor or any subsidiary or affiliate thereof as if it had not entered into this Agreement or any other agreement with them. Escrow Agent and its affiliates and their officers, directors, employees, and agents (including legal counsel) may now or hereafter be engaged in one or more transactions with the Company, the Agent, the Investor, or Make Good Pledgor or any subsidiary or affiliate thereof or may act as trustee, agent or representative of either the foregoing parties or otherwise be engaged in other transactions with such parties (collectively, the “Other Activities”). Without limiting the forgoing, Escrow Agent and its affiliates and their officers, directors, employees, and agents (including legal counsel) shall not be responsible to account to the Company, the Agent, the Investor or the Make Good Pledgor or any subsidiary or affiliate thereof for such Other Activities.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. 10.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. 10.2 The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 10.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.the
Appears in 1 contract
Samples: Escrow Agreement (Bluegate Corp)
Exculpation and Indemnification of Escrow Agent. 9.1. The a. Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Make Good Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's or entity's obligations hereunder or under any such document. Except for amendments this Make Good Agreement and instructions to this Agreement referred to below, and except for instructions given Escrow Agent pursuant to the terms of this Make Good Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The b. Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The duties and responsibilities of the Escrow Agent hereunder shall be determined solely by the express provisions of this Make Good Agreement and no other or further duties or responsibilities shall be implied, including, but not be bound limited to, any obligation under or imposed by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any laws of the terms thereofState of New York upon fiduciaries. THE ESCROW AGENT SHALL NOT BE LIABLE, unless evidenced by a writing delivered to the DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
c. The Company and each Make Good Pledgor each hereby, jointly and severally, indemnify and hold harmless Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, and any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentprincipals, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxespartners, including withholding taxesagents, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, employees and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company affiliates from and against any and all expenses, including reasonable counsel attorneys' fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Make Good Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such expenses or loss are not as a result if Escrow Agent is guilty of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly under this Make Good Agreement, then Escrow Agent, as the case may be, will bear all losses, damages and expenses arising as a result of its own willful misconduct or gross negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term terms "expense or expense" and "loss" shall will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys' fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 8 shall survive the termination of this Make Good Agreement, and the resignation or removal of the Escrow Agent.
Appears in 1 contract
Samples: Make Good Escrow Agreement (Fashion Tech International Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. The a. Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Make Good Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments this Make Good Agreement and instructions to this Agreement referred to below, and except for instructions given Escrow Agent pursuant to the terms of this Make Good Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The b. Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow AgentAgent hereunder shall be determined solely by the express provisions of this Make Good Agreement and no other or further duties or responsibilities shall be implied, as applicableincluding, are affectedbut not limited to, unless it shall give its prior written consent theretoany obligation under or imposed by any laws of the State of New York upon fiduciaries. THE ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofCompany and Make Good Pledgor each hereby, or the executionjointly and severally, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall indemnify and hold harmless the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in and any respect on account of the identitytheir principals, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for hereinpartners, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agentagents, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith employees and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company affiliates from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Make Good Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such expenses or loss are not as a result if Escrow Agent is guilty of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly under this Make Good Agreement, then Escrow Agent will bear all losses, damages and expenses arising as a result of its own willful misconduct or gross negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 8 shall survive the termination of this Make Good Agreement, and the resignation or removal of the Escrow Agent.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Placement Agent, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Placement Agent, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Placement Agent, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than three (3) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1(a) The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice or depositing the Shares. The Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. (b) The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. (c) The Escrow Agent will be indemnified and held harmless by the Company and Management jointly and severally from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow AgentAgent hereunder; except, as applicable, hereunder, to the monies or other property held by it hereunder or any income earned from investment of such monies; provided, extent that such expenses or loss are not as a result of the Escrow AgentAgent is guilty of willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly under this Agreement. For this purpose, the term “attorneys' fees” includes fees payable to any counsel retained by the Escrow Agent in connection with its services under this Agreement and, with respect to any matter arising under this Agreement as to which the Escrow Agent performs legal services, its standard hourly rates and charges then in effect. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement (other than the Purchase Agreement) out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice or depositing the Escrow Funds. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The (c) Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, fraud or gross negligence under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 5 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Closing Escrow Agreement (China Nutrifruit Group LTD)
Exculpation and Indemnification of Escrow Agent. 9.1. The (a) Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Make Good Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments this Make Good Agreement and instructions to this Agreement referred to below, and except for instructions given Escrow Agent pursuant to the terms of this Make Good Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The (b) Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this AgreementMake Good Agreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the State of Nevada upon fiduciaries. Except as specifically provided for hereinTHE ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
(c) The Company and the Make Good Pledgor each hereby, jointly and severally, indemnify and hold harmless each of Escrow Agent shall have no responsibility with respect to the use or application of and any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentprincipals, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxespartners, including withholding taxesagents, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, employees and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company affiliates from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Make Good Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such expenses or loss are not as a result if Escrow Agent is guilty of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly under this Make Good Agreement, then Escrow Agent will bear all losses, damages and expenses arising as a result of its own willful misconduct or gross negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 9 shall survive the termination of this Make Good Agreement, and the resignation or removal of the Escrow Agent.
Appears in 1 contract
Samples: Make Good Escrow Agreement (Aspen Racing Stables. Inc.)
Exculpation and Indemnification of Escrow Agent. 9.17.1 The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent will have no duties or responsibilities other than those expressly set forth hereinin this Agreement. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
7.2 The Escrow Agent will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. 7.3 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of Escrow Agent hereunder; except, that if the Escrow AgentAgent is guilty of willful misconduct, as applicablefraud or gross negligence under this Agreement, hereunderthen the Escrow Agent will bear all losses, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7.3 shall survive the termination of this Agreement.
7.4 If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Amount (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrow Amount) (an “Order”), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate, provided, that the Escrow Agent shall immediately provide notice to the Company, and the Investor Representative of such Order, and, to the extent permitted under the Order, shall defer compliance with the Order until the Company and the Investor Representative have had an opportunity to dispute, appeal, or otherwise challenge such Order. If the Escrow Agent complies with any such Order after complying with all other requirements under this Section 7.4, Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity even though such Order may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
7.5 The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility), except to the extent that it failed to act reasonably to avoid or restrict the effect of any such occurrence on its duties, obligations, and responsibilities hereunder.
7.6 The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
7.7 When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication (whether due to fraud, distortion or otherwise). In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Amount, unless the Escrow Agent receives written instructions, signed by the Investor Representative which eliminates such ambiguity or uncertainty.
7.8 The Escrow Agent does not have any interest in the Escrow Amount deposited hereunder but is serving as escrow holder only and having only possession thereof. The Company shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Amount incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent shall only be responsible for income reporting with respect to income earned on the Escrow Amount and will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent.
7.9 The Escrow Agent may generally engage in any kind of business with the Company, the Investor Representative, or any participant in the Offering or any subsidiary or affiliate thereof as if it had not entered into this Agreement or any other agreement with them. Escrow Agent and its affiliates and their officers, directors, employees, and agents (including legal counsel) may now or hereafter be engaged in one or more transactions with the Company, the Investor Representative, or any participant in the Offering or any subsidiary or affiliate thereof or may act as trustee, agent or representative of either the foregoing parties or otherwise be engaged in other transactions with such parties (collectively, the “Other Activities”). Without limiting the forgoing, Escrow Agent and its affiliates and their officers, directors, employees, and agents (including legal counsel) shall not be responsible to account to the Company, the Investor Representative, or any participant in the Offering or any subsidiary or affiliate thereof for such Other Activities.
7.10 The Escrow Agent has acted as legal counsel for the Company and may continue to act as legal counsel for the Company from time to time, notwithstanding its duties as the Agent hereunder. The Investor Representative consents to the Escrow Agent in such capacity as legal counsel for the Company and waives any claim that such representation represents a conflict of interest on the part of the Agent. The Company and Investor Representative understand that the Escrow Agent is relying explicitly on the foregoing provision in entering into this Agreement.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company or Purchaser or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company or Purchasers or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company or Purchasers or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6this Agreement.
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company Escrowing Parties from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the CompanyCompany or any of the Purchasers, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company such party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Make Good Escrow Agreement (Vanity Events Holding, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. The a. Escrow Agent shall is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. Escrow Agent acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such document. Except for amendments to this Agreement referred and instructions to below, and except for instructions given Escrow Agent pursuant to the terms of this Agreement, Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. The b. Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgmentabsent gross negligence or willful misconduct. The Escrow Agent may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this AgreementAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the State of New York upon fiduciaries. Except as specifically provided for hereinTHE ESCROW AGENT SHALL NOT BE LIABLE, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow AgentDIRECTLY OR INDIRECTLY, as applicableFOR ANY (I) DAMAGES, has complied with the provisions of Section 2 hereunderLOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The c. Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company Company, the Make Good Pledgor and HFG from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; providedexcept, that such if Escrow Agent is guilty of willful misconduct, fraud or gross negligence under this Agreement, then Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agentsuch willful misconduct, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term terms "expense or expense" and "loss" shall will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. (a) The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers Underwriters relating to the funds received by the Escrow AccountAgent under this Agreement, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. (b) The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. (c) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, Agent has complied with the provisions of Section 2 4(a) hereunder.
9.4. (d) The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, Agent does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the (e) The Escrow Agent becomes liable does not have, for tax reporting purposes, any interest in the payment of taxesEscrowed Property received hereunder but is serving as escrow holder only. The parties hereto agree that, including withholding taxesfor tax reporting purposes, in respect of all interest or other income derived earned from the investment of funds held hereunder the Escrowed Property or any payment made hereunder, portion thereof in any tax year (i) to the extent such interest or other income is distributed by the Escrow AgentAgent to any person or entity pursuant to the terms of this Escrow Agreement during such tax year, shall be reported as applicable, may pay allocated to such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paidperson or entity, and may use the sum withheld for that purpose. The Escrow Agent (ii) otherwise shall be indemnified and held harmless against any liability for taxes and for any penalties or interest reported as allocated to the subscribers, in respect of taxes, proportion to their respective Subscription Payment as set forth on such investment income or payments in the manner provided in Section 9.6Exhibit A hereto.
9.6. (f) The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of except for the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or ’s gross negligence promptly or misconduct. Promptly after the receipt by the Escrow Agent, as applicable, of Agent or notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. .
(g) For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Escrow Agreement (XBiotech Inc.)
Exculpation and Indemnification of Escrow Agent. 9.18.1. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than itself) or any other person, or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under any such document. Except for amendments to as provided in this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, Account as provided for in this Agreement or accepted by the Escrow Agent, as applicable, the Escrow Agent shall not be obligated to recognize any agreement between any and or all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.28.2. The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively and shall be protected in acting upon upon, any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Except as provided by Section 2 of this Agreement, the Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereofhereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.38.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or value, genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any property or document or property pursuant to the provisions of including this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof, provided, however, that nothing herein shall relieve the Escrow Agent from liability for gross negligence or willful misconduct in connection with the use or application of any Escrow Funds. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied if made in accordance with the provisions of Section 2 hereunder6 herein.
9.48.4. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event any event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.58.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless by the other parties hereto against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.68.6.
9.68.6. The Escrow Agent will shall be indemnified and held harmless harmless, jointly and severally by the Company other parties hereto, from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which which, in any way, directly or indirectly, indirectly arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or monies (except from liability for its own gross negligence promptly or willful misconduct). Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against any of the Companyother parties hereto, notify the Company such other parties thereof in writing, but unless such notice was not made promptly by the Escrow Agent the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any party from any liability which the Company such party may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or and loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow AgentAgent and the indemnifying party, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating investigation or defending against any such claimsclaim, demand, action, suit or proceeding. Notwithstanding anything herein to the contrary, the other parties shall not be required to indemnify or hold harmless the Escrow Agent for any liabilities, costs or expenses incurred in connection with or as a result of the Escrow Agent's gross negligence or willful misconduct related to any action required of it herein.
8.7. If any dispute or difference arises between the Company and any Subscriber or any other third person, or if any conflicting demand shall be made upon the Escrow Agent, the Escrow Agent shall not be required to determine the same or take any action in the premises; but the Escrow Agent may await settlement of the controversy by final appropriate legal proceedings, or the Escrow Agent may file suit in interpleader in the courts of the State of Illinois, for the purpose of having the respective rights of the parties adjudicated and may deposit with the court any or all monies held hereunder. Upon institution of such interpleader suit or other action, depositing the Escrow Funds with the court and giving notice of such action to the parties involved either by personal service, or in accordance with the order of the court, the Escrow Agent shall be fully released and discharged from all further obligations hereunder with respect to the Escrow Funds so deposited. From time to time, on and after the date hereof, the other parties hereto shall deliver, or cause to be delivered, such further documents and instruments and shall do any further acts, or cause such further acts to be done as the Escrow Agent or the Company shall reasonably request to carry out more effectively the provisions and purposes of this Agreement, to evidence company compliance herewith or to assure itself that it is protected in acting hereunder.
Appears in 1 contract
Samples: Escrow Agreement (V One Corp/ De)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, Silver Rock, any Purchaser or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, Silver Rock, any Purchaser or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, any Purchaser or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than three (3) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Corporate Expenses Escrow Agreement (Westergaard Com Inc)
Exculpation and Indemnification of Escrow Agent. 9.1. (a) The Escrow Agent shall have no duties or responsibilities in its capacity as escrow agent other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, Agent shall not be obligated in its capacity as escrow agent to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. (b) The Escrow Agent shall not be liable in its capacity as escrow agent to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. (c) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, Agent has complied with the provisions of Section 2 hereunderhereof.
9.4. (d) The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, Agent does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. (e) To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.69(f) hereof.
9.6. (f) The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, Agent in its capacity as applicable, escrow agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, Agent acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Escrow Agreement (Vincera, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. 9.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. 9.2 The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 9.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, Agent has complied with the provisions of Section 2 hereunder.
9.4. 9.4 The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, Agent does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 9.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. 9.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, Agent acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Escrow Agreement (Greengate Corp)
Exculpation and Indemnification of Escrow Agent. 9.17.1 The Escrow Agent is not a party to, and is not bound by or charged with notice of any agreement out of which this escrow may arise. The Escrow Agent shall acts under this Agreement as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow, or any part thereof, or for the form or execution of any notice given by any other party hereunder, or for the identity or authority of any person executing any such notice. The Escrow Agent will have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall will be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto (other than the Escrow Agent) or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's ’s or entity’s obligations hereunder or under any such documentdocument other than as provided in this Agreement. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating pursuant to the Escrow Accountterms of this Agreement, the Escrow Agent, as applicable, shall Agent will not be obligated to recognize any agreement between or among any and or all of the persons or entities referred to herein, notwithstanding that references thereto may be made herein and whether or not it has its knowledge thereof.
9.2. 7.2 The Escrow Agent shall will not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent , and may rely conclusively on, and shall will be protected in acting upon upon, any order, notice, demand, certificate, or opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), ) which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights and responsibilities of the Escrow Agent, as applicable, are affected, unless it Agent hereunder shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for determined solely by the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the express provisions of this Agreement. Except as specifically provided for hereinAgreement and no other or further duties or responsibilities shall be implied, including, but not limited to, any obligation under or imposed by any laws of the Escrow Agent shall have no responsibility with respect to the use or application State of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunderNew York upon fiduciaries.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. 7.3 The Escrow Agent will be indemnified and held harmless harmless, jointly and severally, by the Company and the Stockholder from and against any and all expenses, including reasonable counsel attorneys’ fees and disbursements, damages or loss losses suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or Agent in connection with any claim or demand, which which, in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, Agreement or the services of Escrow Agent hereunder and shall be indemnified and reimbursed by the Company for any and all fees and expenses incurred by it in connection with an interpleader action instituted by Escrow Agent, as applicable, hereunder, the monies or other property held by it hereunder or any income earned from investment of such moniesfees and expenses are incurred; providedexcept, that such if the Escrow Agent is guilty of fraud or gross negligence under this Agreement, then the Escrow Agent will bear all losses, damages and expenses or loss are not arising as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct such fraud or gross negligence promptly negligence. Promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any such demand or claim or the commencement of any action, suit or proceedingproceeding relating to such demand or claim, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, Agent will notify the Company thereof other parties hereto in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or terms “expense” and “loss" shall ” will include all amounts paid or payable to satisfy any claim, demand such claim or liabilitydemand, or in settlement of any such claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agentparties hereto, and all costs and expenses, including, but not limited to, reasonable counsel attorneys’ fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding. The provisions of this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Securities Escrow Agreement (Kirin International Holding, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Placement Agent, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Placement Agent, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Placement Agent, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company Company, Selling Shareholder and Placement Agent from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than three (3) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow AccountEscrowed funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any other agreement between any and all of or among the persons referred to hereinCompany, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.4.6
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company it thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Series a Convertible Preferred Stock Purchase Agreement (Victory Divide Mining CO)
Exculpation and Indemnification of Escrow Agent. 9.1. The 5.1 Escrow Agent shall have no duties or responsibilities other than except those that are expressly set forth herein. The .
5.2 Escrow Agent shall have no duty to enforce any obligation hereunder unless and until it has received counterpart(s) of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation this Agreement bearing signatures of any person to perform any other act. The CHP II OP and RF.
5.3 Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, written notice, demandaffidavit, certificaterequest, opinion or advice of counsel (including counsel chosen by the Escrow Agent)waiver, statementconsent, instrument, report receipt or other paper or document (furnished to it, not only as to in assuming its due execution and the validity and effectiveness of its provisions, provisions but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, it in good faith believes to be genuine and what it purports to be signed or presented by the proper person or persons. The be.
5.4 In addition to any other protections of Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which error of judgment, mistake of fact or law, or action of any kind taken or omitted to be taken hereunder if (i) in good faith reasonably believed by it to be in accordance with the provisions and intent hereof or (ii) otherwise not constituting gross negligence or willful misconduct by Escrow Agent.
5.5 CHP II OP and RF jointly and severally shall indemnify Escrow Agent and each of its owners (partners), employees, and agents (“Indemnified Persons”) against all claims, demands, liabilities, losses, and expenses, including reasonable attorneys’ fees, that may at any time be incurred by reason or asserted against any of the Indemnified Persons relating to this Agreement, any transaction contemplated hereby, or any act or omission by or on behalf of Escrow Agent hereunder, except to the extent directly resulting from Escrow Agent’s gross negligence or willful misconduct.
5.6 If Escrow Agent is uncertain as to the proper disposition of any investment of any monies which it holds hereunder provided the escrowed funds, Escrow AgentAgent in its sole discretion may deposit the escrowed funds with a court of competent jurisdiction, together with such pleadings as applicableEscrow Agent deems appropriate, has complied with the provisions of Section 2 hereunder.
9.4. The whereupon Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent no further obligation hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.EAST\127084276.1
Appears in 1 contract
Samples: Escrow Agreement (CNL Healthcare Properties II, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any such payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow AccountEscrowed Funds as provided herein, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among the Placement Agent, the Company, or any and all of the persons referred to hereinSubscriber, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company Company, any Subscriber or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained)document, which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, any Subscriber, the Placement Agent or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, any Subscriber, the Placement Agent or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds (other than taxes with respect to interest income retained by the Escrow Agent hereunder), or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.4.6
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company it may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
4.7 In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands which, in its opinion, are in conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action, other than to keep safe the subscriptions and subscription payments received, until the questions regarding its duties and rights are clarified to its satisfaction or it shall be directed otherwise by a final judgment of a court of competent jurisdiction.
4.8 No provision of this Agreement shall require the Escrow Agent to risk or advance its own funds or otherwise incur any financial liability or potential financial liability in the performance of its duties or the exercise of its rights under this Agreement.
4.9 Notwithstanding any other provision of this Agreement, the Escrow Agent shall not be obligated to perform any obligation hereunder and shall not incur any liability for the nonperformance or breach of any obligation hereunder to the extent that the Escrow Agent is delayed in performing, unable to perform or breaches such obligation because of acts of God, war, terrorism, fire, floods, strikes, electrical outages, equipment or transmission failures, or other causes reasonably beyond its control.
4.10 IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
4.11 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. 5.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person other than itself to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any other party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinparties hereto, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 5.2 The Escrow Agent shall not be liable to the Company or the Placement Agent or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 5.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Placement Agent, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 5.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Placement Agent, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 5.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds to the Company to the extent due to the Company in accordance with the instructions delivered as set forth in Exhibit C such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless by the Company against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64.6.
9.6. 5.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including all reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or willful misconduct by Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. , unless the Escrowing Party shall be materially prejudiced by such delay.
5.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Placement Agent or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Placement Agent or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64.6.
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any other party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Escrowing Parties relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinEscrowing Parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company Company, the Placement Agent or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Placement Agent or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Placement Agent or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.4.6
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companyan Escrowing Party, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company an Escrowing Party may have to the Escrow Agent hereunder. .
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Exculpation and Indemnification of Escrow Agent. 9.1. a. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be mademade other than as set forth herein, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Underwriter relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinCompany and the Underwriter, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. b. The Escrow Agent shall not be liable to the Company Company, the Underwriter, or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is reasonably believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. c. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Underwriter, or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for otherwise set forth herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. d. The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons duly authorized representative(s) of the Company and the Underwriter, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Underwriter, or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. e. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder Investment Gain Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The taxes from the Escrowed Funds; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds and Investment Gain Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. In the event that the funds withheld for tax purpose exceeds actual tax payment made, the Escrow Agent shall deposit the surplus into the Escrow Account upon such payment. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. f. The Escrow Agent will be indemnified and held harmless by the Company and Underwriter from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than ten (10) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any demand, claim, action suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, reasonably deem sufficient to indemnify itself for any such loss or expense.
g. For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Indemnification Escrow Agreement (Cornerstone Management, Inc.)
Exculpation and Indemnification of Escrow Agent. 9.1. 4.1 The Escrow Agent shall have haven no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Escrow Agreement referred to referenced below, and except for joint written instructions given to the Escrow Agent by the Company and the subscribers escrowing parties relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinescrowing parties, notwithstanding that references thereto hereto may be made herein and whether or not it has knowledge thereof.
9.2. 4.2 The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. 4.3 The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, the Initial Purchaser, the Additional Purchasers or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Escrow Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. 4.4 The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, the Initial Purchaser, the Additional Purchasers or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. 4.5 To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64.6.
9.6. 4.6 The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding proceedings involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result hereunder. Promptly after the receipt of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made against the Companya party to this Agreement, notify the Company each of them thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company any such party from any liability which the Company a party may have to the Escrow Agent hereunder. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall, from time to time, in its sole discretion, seem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 7.
4.7 For the purposes hereof, the term "“expense or loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
Appears in 1 contract
Samples: Closing Escrow Agreement (China New Energy Group CO)
Exculpation and Indemnification of Escrow Agent. 9.1. 10.1 The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
9.2. 10.2 The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto.
9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6.
9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.or
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Samples: Escrow Agreement (Bluegate Corp)
Exculpation and Indemnification of Escrow Agent. 9.1. (a) The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else else, by reason of any failure failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any a document or any other person person, to perform such person's ’s obligations under any such document. Except for amendments to this Agreement referred to referenced below, and except for written instructions given to the Escrow Agent by the Company and the subscribers Purchasers relating to the Escrow AccountEscrowed Funds, the Escrow Agent, as applicable, Agent shall not be obligated to recognize any agreement between or among any and all of the persons referred to hereinPurchasers, notwithstanding that references thereto may be made herein and whether or not it the Escrow Agent has knowledge thereof.
9.2. (b) The Escrow Agent shall not be liable to the Company Company, any Purchaser or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be liable for any action taken or omitted by him in good faith and in no event shall the Escrow Agent be liable or responsible except for the Escrow Agent’s own gross negligence or willful misconduct. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing written notice delivered to the Escrow Agent, as applicable, Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, Agent are affected, unless it shall give its prior written consent thereto.
9.3. (c) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form ofform, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by to it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, ; nor shall the Escrow Agent be responsible or liable to the other parties hereto Company, any Purchaser or to anyone else in any respect on account of the identity, authority or rights rights, of the persons person executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of or this Agreement. Except as specifically provided for herein, the The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent Escrowed Funds pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder.
9.4. (d) The Escrow Agent shall have the right to assume assume, in the absence of written notice to the contrary from the proper person or persons persons, that a fact or an event event, by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto Company, any Purchaser or to anyone else for any action taken or omitted, or any action suffered by it omitted to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
9.5. (e) To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder the Escrowed Funds, or any payment made hereunder, the Escrow Agent, as applicable, Agent may pay such taxes. The ; and the Escrow Agent, as applicable, Agent may withhold from any payment of monies held by it hereunder the Escrowed Funds such amount as the Escrow Agent, as applicable, Agent estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.64(f).
9.6. (f) The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable all counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, except for claims relating to gross negligence or reckless misconduct by the Escrow Agent or breach of this Agreement by the Escrow Agent, as applicable, hereunder, or the monies or other property held by it hereunder or any income earned from investment of such monies; providedhereunder. Promptly, that such expenses or loss are not as a result of the Escrow Agentbut no later than three (3) business days, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, Agent shall, if a claim in respect thereof is to be made by the Escrow Agent against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, Agent to give such notice shall not relieve the Company from any liability which the Company it may have to the Escrow Agent hereunder, unless the failure of the Escrow Agent to give such notice prejudices or otherwise impairs the Company’s ability to defend any claim, demand, action, suit or proceeding. Notwithstanding any obligation to make payments and deliveries hereunder, the Escrow Agent may retain and hold for such time as it deems necessary such amount of monies or property as it shall reasonably deem sufficient to indemnify itself for any such loss or expense.
(g) For the purposes hereof, the term "expense terms “expense” or “loss" ” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claimsclaim, demand, action, suit or proceeding.
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