Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall incur liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages. (b) BRI and the Partnership shall jointly and severally indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit. (c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 3 contracts
Samples: Escrow Agreement (Blackstone Real Estate Acquisitions Iii LLC), Escrow Agreement (Goldman Sachs Group Lp), Escrow Agreement (Berkshire Companies Limited Partnership)
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only in a diligent and faithful manner and shall have no duty under any other agreement or document, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of fundsmisconduct. The Escrow Agent shall not be responsible assumes no responsibility for the validity adequacy or sufficiency of this Agreement and shall not be responsible for any enforceability of the agreements referred security interest which Section 2.3 hereof purports to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementcreate. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made anyone except for its own negligence or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreementwillful misconduct. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
(b) BRI and the Partnership shall jointly and severally . Parent hereby agrees to indemnify the Escrow Agent and its officers, directors, employees and agents for, and hold it and them harmless against, any direct loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its the Escrow Agent carrying out of its duties hereunder. This right of indemnification, including without limitation drawing on compensation and reimbursement shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Entropic Communications Inc), Merger Agreement (Entropic Communications Inc), Agreement and Plan of Merger and Reorganization (Entropic Communications Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and the Escrow Agent shall not be liable to anyone for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyoneadvice. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI The Parent and the Partnership shall jointly and severally Indemnifying Stockholders agree to indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder. The Parent, including without limitation drawing on the Letter of Credit.
(c) BRI one hand, and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this AgreementIndemnifying Stockholders, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income other hand, shall each be liable for one-half of such amounts, provided that the Indemnification Escrow Shares shall constitute the sole and exclusive source for satisfaction of the Indemnifying Stockholders’ obligations hereunder and the Indemnifying Stockholders shall in no event be responsible for amounts in excess of the value of the Escrow Agent attributable to Shares at the payment of fees hereunder). BRI and time the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesindemnification is paid.
Appears in 2 contracts
Samples: Indemnification Shares Escrow Agreement (Akoustis Technologies, Inc.), Indemnification Agreement (Ekso Bionics Holdings, Inc.)
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall incur liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds5.1. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred undertakes to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of perform such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoingAgreement only and shall have no duty under any other agreement or document, and no implied covenants or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent (i) may rely upon and shall not be obligated liable for acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall be under no duty to inquire as to into or investigate the validity, accuracy or content of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementsuch document. In all questions arising under this Escrow Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Anything in this Escrow Agent shall not be required Agreement to take any action hereunder involving any expense unless the payment of such expense is made or provided for contrary notwithstanding, in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectspecial, punitive, special indirect or consequential damageslosses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(b) BRI 5.2. The Buyer and the Partnership Seller (collectively referred to as the "Indemnitors") shall jointly and severally indemnify indemnify, defend and save harmless the Escrow Agent forand its directors, officers, agents and hold it harmless against, any employees (the "Indemnitees") from all loss, liability or expense (including reasonable attorneys' the fees and expensesexpenses of in house or outside counsel) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out (i) the Escrow Agent's execution and performance of its duties hereunderthis Escrow Agreement, including without limitation drawing on except in the Letter case of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect indemnitee to the payment extent that such loss, liability or expense is due to the gross negligence or willful misconduct of Escrow Funds under this Agreementsuch indemnitee, and or (ii) its following any instructions or other directions from the Buyer or the Seller, except to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, extent that may be assessed against the Escrow Agent in its following any such payment instruction or other activities under this Agreement (other than taxes on direction is expressly forbidden by the net income terms hereof. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent attributable to or the termination of this Escrow Agreement. The parties hereby grant the Escrow Agent a lien on, right of set-off against and security interest in the Escrow Fund for the payment of fees any claim for indemnification, compensation, expenses and amounts due hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 2 contracts
Samples: A/R Escrow Agreement (National Investment Managers Inc.), Deposit Escrow Agreement (National Investment Managers Inc.)
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI and the Partnership Parent shall jointly and severally indemnify the Escrow Agent forindemnify, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify defend and hold the Escrow Agent harmless from and against any taxesand all loss, additions for late paymentdamage, interestliability and expense, penalties including reasonable counsel fees (and other expenses, including allocated costs of in-house counsel) ("Escrow Agent Losses") that may be assessed against incurred by the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income hereunder as a consequence of the Escrow Agent attributable to the payment of fees hereunder)Parent's actions. BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxesThe Stockholders shall severally indemnify, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify defend and hold the Escrow Agent harmless from and against any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which all Escrow Agent Losses that may be incurred by the Escrow Agent may be hereunder as a consequence of actions of the Stockholder Agent or become subject of the Stockholders. Each of Parent and the Stockholders shall indemnify, defend and hold the Escrow Agent harmless from and against one-half of any and all Escrow Agent Losses arising out of or in connection with its acceptance of appointment as Escrow Agent hereunder which are not a consequence of any action of any other party hereto, except as caused by the Escrow Agent's willful misconduct or which arises out gross negligence. The Stockholders' obligation to indemnify Escrow Agent under this Section 6(b) for Escrow Agent Losses may be satisfied by use of this the Escrow Fund and shall be limited to the amounts therein, provided that any such use of the Escrow Fund is subordinated to the satisfaction of all other claims for indemnification for Damages under Article VIII, Section 1.7(b) and Section 1.7(d) of the Merger Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 2 contracts
Samples: Merger Agreement (Reid Clifford A), Merger Agreement (Eloquent Inc)
Limitation of Escrow Agent’s Liability. (a) Neither 5.1 The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only, each of which duties is merely ministerial in nature, and the Escrow Agent nor shall have no duty under any of its directorsother agreement or document, officers and no implied covenants or employees obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own gross negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementmisconduct. In all questions arising under this Agreement, the Escrow Agent may rely on the written advice of counsel, including in-house counselcounsel (whether such counsel shall be regularly retained or specifically employed), and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The , provided that Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of exercised reasonable care in selecting such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreementcounsel. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
(b) BRI 5.2 Purchaser Parties and the Partnership shall Seller Parties hereby agree jointly and severally to indemnify the Escrow Agent and its officers, directors, employees and agents for, and hold it and them harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its the Escrow Agent carrying out of its duties hereunder, including without limitation drawing on . This right of indemnification shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment resignation or other activities under this Agreement (other than taxes on the net income removal of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 2 contracts
Samples: Escrow Agreement (Comarco Inc), Escrow Agreement (Comarco Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall incur liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency any defaults hereunder by any party. Escrow Agent may consult with counsel of this Agreement its own choice and shall not be responsible have full and complete authorization and protection for any of action taken or suffered by Escrow Agent hereunder in good faith and in accordance with the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance opinion of such duties as are specifically set forth in this Escrow Agreementcounsel. Without limiting In the foregoing, the Escrow Agent (i) shall not be obligated to inquire event of actual or potential dispute as to the accuracy rights of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising parties hereto under this AgreementContract, the Escrow Agent may rely in its sole discretion, continue to hold the Deposit until the parties mutually agree to the release thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or it may deposit any monies and all instruments held pursuant to this Contract with the Clerk of Court, Xxx County, Florida, and upon notifying all parties concerned of such action, all liability on the advice part of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on shall fully terminate, except to the extent of an account of any monies theretofore delivered out of escrow. In the event of any suit between Seller and Buyer wherein in the Escrow Agent is made a party by virtue of acting as such advice Escrow Agent hereunder, or in the event of any suit wherein Escrow Agent interpleads the subject matter of this escrow, the Escrow Agent shall be entitled to recover a reasonable attorney’s fee and costs incurred, said fees and costs to be charged and assessed as court costs in favor of the prevailing party. All parties agree that Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any party or person whomsoever for any action hereunder involving taken or omitted by Escrow Agent, including but not limited to any expense misdelivery of monies or instruments subject to this escrow, unless the payment such misdelivery shall be due to willful breach in bad faith of such expense is made this Contract or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI and the Partnership shall jointly and severally indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Alico Inc), Purchase and Sale Agreement (Alico Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall incur liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow FundCollateral, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this 5 5 Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Seller Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI Seller and the Seller Partnership shall jointly and severally indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 2 contracts
Samples: Escrow Agreement (Alter Robert A), Escrow Agreement (Westbrook Real Estate Partners LLC)
Limitation of Escrow Agent’s Liability. (a) Neither 5.1 The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own gross negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementmisconduct. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
(b) BRI 5.2 Parent and the Partnership shall jointly and severally Amorcyte Representative, acting on behalf of the Amorcyte Stockholders hereby agree to indemnify the Escrow Agent and its officers, directors, employees and agents for, and hold it and them harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its the Escrow Agent’s carrying out of its duties hereunder, including without limitation drawing on . This right of indemnification shall survive the Letter termination of Credit.
(c) BRI this Agreement and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 2 contracts
Samples: Merger Agreement (NeoStem, Inc.), Escrow Agreement (NeoStem, Inc.)
Limitation of Escrow Agent’s Liability. (aA) Neither the The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not have no duty to inquire into or investigate the validity, accuracy or content of any document delivered to it nor shall the Escrow Agent be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from .
(B) In the investments event conflicting demands are made in accordance with this Agreement. In no event shall or conflicting notices are served upon the Escrow Agent with respect to the Shareholders Indemnity Shares, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be liable appointed pursuant to Section 9 hereof, or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and Parent will pay the Escrow Agent all costs, expenses and reasonable attorneys' fees expended or incurred by the Escrow Agent pursuant to the exercise of the Escrow Agent's rights under this Section 6(b) (such costs, fees and expenses will be treated as extraordinary fees and expenses for indirect, punitive, special or consequential damagesthe purposes of Section 5 hereof).
(bC) BRI Parent and the Partnership shall Shareholders, jointly and severally severally, hereby agree to indemnify the Escrow Agent for, and hold it harmless against, any loss, damage, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder. As among themselves, including without limitation drawing on each of Parent and Shareholders shall be liable for one- half (1/2) of such amounts and Parent shall be entitled to reimbursement from the Letter Shareholders Indemnity Shares of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment Shareholders' share of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment loss, liability or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesexpense.
Appears in 2 contracts
Samples: Merger Agreement (Andataco), Merger Agreement (Ipl Systems Inc)
Limitation of Escrow Agent’s Liability. (a) Neither 5.1 The Escrow Agent undertakes to perform such duties as are specifically set forth in this Escrow Agreement only and shall have no duty under any other agreement or document and no implied covenants or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own gross negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementmisconduct. In all questions arising under this Escrow Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counselcounsel (whether such counsel shall be regularly retained or specifically employed), and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI and the Partnership shall jointly and severally 5.2 Parent agrees to indemnify the Escrow Agent and its officers, directors, employees and agents for, and hold it and them harmless against, any loss, liability liability, attorney’s fees (whether such attorneys shall be regularly retained or specifically employed) or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its the Escrow Agent carrying out of its duties hereunder, including without limitation drawing on . The costs and expenses of enforcing this right of indemnification shall also be paid by Parent. This right of indemnification shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of this Escrow Funds under this Agreement, and the resignation or removal of the Escrow Agent.
5.3 The escrow account shall be maintained in accordance with applicable laws, rules and regulations and policies and procedures of general applicability to indemnify escrow accounts established by Escrow Agent. The Escrow Agent shall not be personally liable for any act that it may do or omit to do hereunder in good faith and hold in the exercise of its own best judgment nor for any damages not directly resulting from its gross negligence or willful misconduct. Without limiting the generality of the foregoing sentence, it is hereby agreed that in no event will the Escrow Agent harmless from and against be liable for any taxeslost profits or other indirect, additions for late paymentspecial, interestincidental or consequential damages which the parties may incur or experience by reason of having entered into or relied on this Escrow Agreement or arising out of or in connection with the Escrow Agent’s duties hereunder, penalties and other expenses, notwithstanding that may be assessed against the Escrow Agent was advised or otherwise made aware of the possibility of such damages; nor shall the Escrow Agent be liable for acts of God, acts of war, breakdowns or malfunctions of machines or computers, interruptions or malfunctions of communications or power supplies, labor difficulties, actions of public authorities, or any other similar cause or catastrophe beyond the Escrow Agent’s reasonable control. Any act done or omitted to be done by the Escrow Agent pursuant to the advice of its attorneys shall be conclusively presumed to have been performed or omitted in good faith by the Escrow Agent.
5.4 In the event the Escrow Agent is notified of any such payment dispute, disagreement or other activities under this Agreement (other than taxes on legal action relating to or arising in connection with the net income escrow, the Escrow Fund, or the performance of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct Agent’s duties under this Escrow Agreement, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold all documents and funds and may wait for settlement of any such controversy by final appropriate legal proceedings, arbitration, or other means as, in writing with respect to the Escrow Agent's responsibility for withholding and other taxes’s discretion, assessments or other governmental chargesit may require. In such event, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxeswill not be liable for interest or damage. Furthermore, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may may, at its option, file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves. The Escrow Agent is authorized, at its option, to deposit with the court in which such action is filed, all documents and funds held in escrow, except all costs, expenses, charges, and reasonable attorneys’ fees incurred by the Escrow Agent due to the interpleader action and which Parent agrees to pay. Upon initiating such action, the Escrow Agent shall be or become subject in connection with or which arises out fully released and discharged of and from all obligations and liability imposed by the terms of this Escrow Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 2 contracts
Samples: Escrow Agreement (Quikbyte Software Inc), Escrow Agreement (Quikbyte Software Inc)
Limitation of Escrow Agent’s Liability. (a) Neither 5.1 The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own gross negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementmisconduct. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectEXCEPT WITH RESPECT TO ITS OWN WILLFUL MISCONDUCT, punitiveIN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, special or consequential damagesDIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR INCIDENTAL OR PUNITIVE DAMAGES), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
(b) BRI 5.2 Active and the Partnership shall Seller hereby jointly and severally agree to indemnify the Escrow Agent and its officers, directors, employees and agents for, and hold it and them harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its the Escrow Agent carrying out of its duties hereunder. This right of indemnification, including without limitation drawing on compensation and reimbursement shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the resignation or removal of the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income Agent.
5.3 The duties of the Escrow Agent attributable to the payment of fees hereunder). BRI hereunder are purely ministerial in nature, and the Partnership undertake to instruct under no circumstances shall the Escrow Agent in writing be deemed to be a fiduciary to the parties or any other person.
5.4 Except with respect to the Escrow Agent's responsibility for withholding and other taxesits gross negligence or willful misconduct, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any shall never be required to risk or advance its own funds or incur personal financial liability on account of taxes, assessments in performing its duties under this Agreement unless it shall have been assured or other governmental charges, including without limitation indemnified to its satisfaction by the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the party requesting such action.
5.5 The Escrow Agent may be perform its duties hereunder through agents, attorneys, custodians or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesnominees.
Appears in 2 contracts
Samples: Stock Acquisition Agreement (Active Network Inc), Stock Acquisition Agreement (Active Network Inc)
Limitation of Escrow Agent’s Liability. (a) Neither 7.1. Anything contained herein to the contrary notwithstanding, the Escrow Agent nor undertakes to perform such duties as are specifically set forth in written instructions delivered pursuant to this Agreement only and shall have no duty under any of its directorsother agreement or document, officers and no implied covenants or employees obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own gross negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementmisconduct. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
(b) BRI 7.2. Purchaser, the Company, the Shareholder Representative and the Partnership shall jointly and severally Selling Parties (through the Shareholder Representative, acting on behalf of the Selling Parties) hereby agree to indemnify the Escrow Agent and its officers, directors, employees and agents for, and hold it and them harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its the Escrow Agent carrying out of its duties hereunder; provided, including without limitation drawing on however, that promptly after the Letter receipt by the Escrow Agent of Credit.
notice of any claim or commencement of any suit, action or proceeding, the Escrow Agent shall, if a claim of indemnification in respect thereof is to be made against any of the other parties hereto or beneficiaries hereof, notify such other parties (c) BRI or, in the case of the Selling Parties, the Shareholders’ Representative); and provided, further, that the Partnership indemnifying party or parties shall be entitled, upon the consent of the Escrow Agent, which consent shall not be withheld for any reason other than the reasonable belief by the Escrow Agent that such indemnifying party does not have sufficient assets to defend such claim, jointly or severally and severally hereby agree at their own expense, to participate in or assume the defense of any such action, suit or proceeding. This right of indemnification, compensation and all obligations imposed now or hereafter by any applicable tax law with respect to reimbursement shall survive the payment termination of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent. The Escrow Agent nor shall not be liable to anyone for any action taken, suffered or omitted to be taken by it hereunder in good faith except in the case of its directors, officers the Escrow Agent's negligence or employees willful misconduct (each as finally determined by a court of competent jurisdiction). The Escrow Agent shall incur no liability with respect to any action taken, suffered or omitted to be taken or suffered by it in reliance upon any notice, direction, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or in a separate written instruction), consent, statement or other documents believed by it in good faith to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody negligence (each as finally determined by a court of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of fundscompetent jurisdiction). The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible or for any of the agreements referred to hereinor described herein (including, including without limitation, the Merger Support Agreement and the Partnership Merger Arrangement Agreement), but or for determining or compelling compliance therewith, and shall not otherwise be bound thereby. The Escrow may consult with and obtain advice from counsel (who may be counsel to a party hereto or an employee of the Escrow Agent) and shall be obligated only for fully protected in taking, suffering or omitting to take any action in reliance on said advice. In the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, event the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered believes in good faith that any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Escrow Agent based on such advice the hereunder, Escrow Agent Agent, may refrain from taking any action, and shall be fully protected and shall not be liable in any way to anyone. The Escrow Mattson, the Supporting Parties Agent shall not be required to take or any action hereunder involving any expense Supporting Party or othex xxxxxn or entity for refraining from taking such action, unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectreceives written instructions signed by Mattson and the Supporting Parties Agent with respect to a Section 5.0 Xxxxx, punitiveor by Mattson and the Supporting Party identified in the Claim Notice with xxxxxxx to a Section 5.2 Claim, special which eliminates such ambiguity or consequential damagesuncertainty to the satisfaction of Escrow Agent.
(b) BRI Mattson and the Partnership shall Supporting Parties hereby, jointly and severally indemnify severally, agrxx xx xndemnify the Escrow Agent (and its officers, directors and employees) for, and hold it (and its officers, directors and employees) harmless against, any loss, liability or cost, expense (including including, without limitation, reasonable attorneys' attorney's fees and expenses), damage, liability, penalty, judgment, settlement, proceeding or claim ("Losses") incurred in good faith without gross negligence or willful misconduct on the part of the Escrow AgentAgent (each as finally determined by a court of competent jurisdiction), arising out of or in connection any way connected with its execution and delivery of this Escrow Agreements and the administration and carrying out of its duties hereunderhereunder including, including without limitation drawing limitation, outside counsel fees. Mattson, on the Letter one hand, and the Supporting Parties, on the other haxx, xx among themselves, shall each be liable for one-half of Creditsuch Losses; provided, however, that if a court of competent jurisdiction determines that any such Losses are due to the bad faith or willful misconduct of Mattson, on the one hand, or the Supporting Parties, on the other hanx, xxxx all of such Losses shall be borne by Mattson or the Supporting Parties, respectively. In no event shall thx Xxxxxw Agent be liable for indirect, punitive, incidental, special or consequential damages or loss (including, but not limited to, lost profits) whatsoever to any person or entity, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) BRI and the Partnership jointly and severally hereby agree to assume If any and all obligations imposed now dispute between or hereafter conflicting claims by or among Mattson, Supporting Parties Agent and/or any applicable tax law Supporting Party or othex xxxxxn or entity with respect to the payment of this Escrow Funds under this Agreement, and to indemnify and hold the Escrow Fund or the Escrow Account arises, the Escrow Agent harmless may, in its sole discretion, at its option (A) initiate an action in interpleader or another appropriate action, suit or proceeding in a court of competent jurisdiction seeking to resolve such dispute or claims and/or (B) refrain from complying with any claim, notice, instruction, direction, request or other communication, paper or document, so long as such dispute or conflict shall continue, and against (in either case) shall be fully protected and shall not be liable in any taxesway to Mattson, additions Supporting Parties Agent or any Supporting Party or other pexxxx xx entity for late paymentfailure or refusal to comply with such conflicting claims, interestnotices, penalties and other expensesinstructions, that may be assessed against directions, requests, communications, papers or documents until the Escrow Agent is satisfied, in any good faith, that such payment conflicting claims, notices, instructions, directions, requests, communications, papers or other activities under this Agreement (other than taxes on documents have been definitively determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction or settled by agreement between the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent conflicting parties as evidenced in a writing with respect reasonably satisfactory to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent. The Escrow Agent nor shall not be liable to anyone for any action taken or omitted to be taken by it hereunder except in the case of its directors, officers the Escrow Agent's gross negligence or employees willful misconduct or breach of the terms of this Agreement. The Escrow Agent shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or in a separate written instruction), consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible or for any of the agreements referred to hereinor described herein (including, including the Merger Agreement and the Partnership Merger Agreementwithout limitation, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby. In all questions arising under this the Escrow Agreement, the Escrow Agent may rely on the advice of counsel, counsel (including in-house counsel), and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI The Buyer and the Partnership shall Company Shareholders hereby, jointly and severally severally, agree to indemnify the Escrow Agent (and its officers, directors and employees) for, and hold it (and its officers, directors and employees) harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunderhereunder including, including without limitation drawing on the Letter of Credit.
(c) BRI limitation, outside counsel fees. The Buyer and the Partnership Company Shareholders shall each be liable for one-half of such amounts; PROVIDED, HOWEVER, that the Escrow Fund shall be the sole source of recovery for amounts payable by the Company Shareholders under this Section 8(b). In no event shall the 101 Escrow Agent be liable for indirect, punitive, special or consequential damages or loss (including, but not limited to, lost profits) whatsoever, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action. The Buyer and the Company Shareholders hereby, jointly and severally hereby severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of the Escrow Funds Account under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, assessments, additions for late payment, governmental charges, including, without limitation, withholdings or deductions or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, including costs and expenses (including reasonable legal fees and expenses), interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereundereach, a "Liability"). BRI The Buyer and the Partnership undertake to Shareholders' Representative shall instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and ; PROVIDED, HOWEVER, that the Partnership jointly and severally hereby agree indemnity in the foregoing sentence will not apply to indemnify and hold the extent that a Liability results from the Escrow Agent's gross negligence or willful misconduct, which shall include failure to follow such written instructions. The Escrow Agent harmless from any shall have no more or less responsibility or liability on account of taxes, assessments any action or other governmental charges, including without limitation the withholding omission of any book-entry depository or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which subescrow agent employed by the Escrow Agent may be than any such book entry depository or become subject in connection with subescrow agent has to the Escrow Agent, except to the extent that such action or which arises out omission of this Agreementany book entry depository or subescrow agent was caused by the Escrow Agent's own gross negligence, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesbad faith or willful misconduct.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rsa Security Inc/De/)
Limitation of Escrow Agent’s Liability. Responsibilities of ----------------------------------------------------------- Escrow Agent. Escrow Agent's responsibility and liability under this Agreement ------------ shall be limited as follows:
(ai) Neither Escrow Agent does not represent, warrant or guaranty to the holders of the Securities from time to time the performance of the Company; (ii) Escrow Agent shall have no responsibility to the Company or the holders of the Securities or Trustee from time to time as a consequence of performance or non-performance by Escrow Agent hereunder, except for any gross negligence or willful misconduct of Escrow Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and conduct; and (iv) Escrow Agent is not obligated to supervise, inspect or inform the Company or any third party of any matter referred to above. In no event shall Escrow Agent be liable (A) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document from the Company or any entity acting on behalf of the Company, (B) for any consequential, punitive or special damages, (C) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians or (D) for an amount in excess of the value of the Escrow Account, valued as of the date of deposit. No implied covenants or obligations shall be inferred from this Agreement against Escrow Agent, nor shall Escrow Agent nor be bound by the provisions of any agreement beyond the specific terms hereof. Specifically and without limiting the foregoing, Escrow Agent shall in no event have any liability in connection with its investment, reinvestment or liquidation, in good faith and in accordance with the terms hereof, of its directorsany funds or the Pledged Securities, officers including without limitation any liability for any delay not resulting from gross negligence or employees shall incur liability with respect willful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any action taken such delay. Escrow Agent shall be entitled to rely upon any judicial or suffered administrative order or judgment, upon any opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by it the Company or Trustee in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. Escrow Agent may act in reliance upon any notice, direction, instruction, consent, statement instrument comporting with the provisions of this Agreement or other documents signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorizedauthorized to do so. At any time Escrow Agent may request in writing an instruction in writing from the Company (other than any disbursement pursuant to Section 6(b)(iii)), nor for other action or inaction except and may at its own willful misconduct or gross negligenceoption include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided, however, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of state in such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered request that it -------- ------- believes in good faith by the Escrow Agent based on that such advice the proposed course of action is consistent with another identified provision of this Agreement. Escrow Agent shall not be liable to anyone. The the Company for acting without the Company's consent in accordance with such a proposal on or after the date specified therein if (i) the specified date is at least five Business Days after the Company receives Escrow Agent's request for instructions and its proposed course of action, and (ii) prior to so acting, Escrow Agent shall has not be required to take any action hereunder involving any received the written instructions requested from the Company. At the expense unless of the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Company, Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to clause (ii) of the first paragraph of this Section 4(a)) shall not be liable for any losses resulting from the investments made action taken or omitted in good faith in accordance with this Agreementsuch advice. Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to any funds securities or other property deposited hereunder. In no the event shall of any ambiguity in the provisions of this Agreement with respect to any funds, securities or property deposited hereunder, Escrow Agent shall be entitled to refuse to comply with any and all claims, demands or instructions with respect to such funds, securities or property, and Escrow Agent shall not be or become liable for indirectits failure or refusal to comply with conflicting claims, punitive, special demands or consequential damages.
(b) BRI and the Partnership shall jointly and severally indemnify the instructions. Escrow Agent forshall be entitled to refuse to act until either any conflicting or adverse claims or demands shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting claimants as evidenced in a writing, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the reasonably satisfactory to Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree Escrow Agent shall have received security or an indemnity satisfactory to assume any and all obligations imposed now or hereafter by any applicable tax law with respect Escrow Agent sufficient to the payment of Escrow Funds under this Agreement, and to indemnify and hold the save Escrow Agent harmless from and against any taxesall loss, additions for late payment, interest, penalties and other expenses, that may be assessed against the liability or expense which Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income may incur by reason of the its acting. Escrow Agent attributable may in addition elect in its sole option to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and commence an interpleader action or seek other taxes, assessments judicial relief or other governmental charges, certifications and governmental reporting in connection with its acting orders as Escrow Agent under this Agreementmay deem necessary. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including The reasonable out-of-pocket costs and expenses (including reasonable legal attorney's fees and expenses) incurred in connection with such proceedings shall be paid by, and shall be deemed an obligation of the Company. No provision of this Agreement shall require Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. 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 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, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility), interest and penalties.
Appears in 1 contract
Samples: Escrow Agreement (Equinix Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other paper or documents believed by it to be genuine and duly authorized, nor for other action or inaction anything except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this the Escrow Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is shall be made or provided for in a manner reasonably satisfactory to it.
(b) In the event that any controversy arises among the parties hereto or with any third person with respect to the subject matter of this Escrow Agreement, its conditions or terms, the Escrow Agent may request the parties to resolve such controversy to its satisfaction or the Escrow Agent may file an interpleader or other appropriate action with the court having jurisdiction in such matters in order to resolve such controversy. The In any event, the Escrow Agent shall not be liable for required to determine the same or take any losses resulting from action in the investments made in accordance with this Agreementpremises, but may await the settlement of any such controversy by final appropriate legal process. In no event CalComp shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI all costs and the Partnership shall jointly and severally indemnify the expenses incurred by Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect pursuant to the payment exercise of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting rights in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesSection 6.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Calcomp Technology Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instructioninstruction (including without limitation wire transfer instructions), consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this the Escrow Agreement, the Escrow Agent may rely on the advice of counsel, including counsel (which may include in-house counsel), and the Escrow Agent shall not be liable to anyone for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyoneadvice. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI and the Partnership shall The Interested Parties agree, jointly and severally severally, to indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' including, without limitation, attorneys fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its appointment hereunder on the carrying out of its duties hereunder. As among themselves, including without limitation drawing Interested Parties agree that the Buyer, on the Letter one hand, and the Indemnifying Stockholders, on the other hand, shall each be liable for one-half of Creditsuch amounts. The foregoing indemnification and agreements to hold harmless shall survive the termination of this Agreement.
(c) BRI Each of the Interested Parties acknowledges and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold agrees that the Escrow Agent harmless from and against (i) shall not be responsible for any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable agreements referred to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, described herein (including without limitation the withholding Merger Agreement), or deduction for determining or the failure to withhold or deduct the samecompelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Escrow Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall have no liability for failure to obtain proper certifications the actions or to properly report to governmental authorities, to which omissions of (or any delay by) any transfer agent of the Escrow Agent may be or become subject Buyer in connection with the transfer, issuance or which arises out delivery of this Agreementany Escrow Shares delivered to it pursuant to the terms hereof for re-issuance to the Indemnifying Stockholders, including costs and expenses (including reasonable legal fees and expensesiv) shall be under no obligation to invest any cash dividends it may receive from the Escrow Shares at any time hereunder (provided, however, that the net proceeds received from the sale of any Escrow Shares pursuant to Section 2(b) shall be invested pursuant to Section 2(b)(iii), interest and penalties).
Appears in 1 contract
Samples: Escrow Agreement (Open Market Inc)
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement and shall have no duty under any other agreement or document, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor shall have no liability under and no duty to inquire as to the provisions of any of its directors, officers or employees agreement (including the Merger Agreement) other than this Agreement. The Escrow Agent shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own gross negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementmisconduct. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made anyone except for its own gross negligence or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreementwillful misconduct. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
. Any act done or omitted pursuant to the advice or opinion of counsel shall be conclusive evidence of the good faith of the Escrow Agent. The Escrow Agent shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. The Escrow Agent shall not be obligated to take any legal action or commence any proceeding in connection with the Escrow Property, the Escrow Account, this Agreement or the Merger Agreement, or to prosecute or defend any such legal action or proceeding. If any portion of the Escrow Property is at any time attached, garnished or levied upon under any order, judgment or decree issued or entered by any court of competent jurisdiction (b) BRI an “Order”), or in the case of payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any Order, or in case any Order shall be made or entered by any court affecting such property of any party thereof, then and in any such event, the Escrow Agent is authorized to rely upon and comply with any such Order which it is reasonably advised by its legal counsel, whether internal or external, that such Order is binding upon without the need for appeal or other action. The Company and the Partnership shall Indemnitors’ Representative hereby agree to jointly and severally indemnify the Escrow Agent and its officers, directors, employees and agents (the “Escrow Agent Indemnified Parties”) for, and hold it and them harmless against, any lossactions, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agentclaims, arising out of or in connection with its carrying out of its duties hereunderlosses, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreementdamages, and to indemnify and hold the Escrow Agent harmless from and against any taxesliabilities, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal attorney’s fees) incurred by or asserted against any of the Escrow Agent Indemnified Parties from and after the date hereof, arising from any claim, demand, suit, action or proceeding in connection with the performance by the Escrow Agent of this Agreement or the transactions contemplated hereby; provided, however, that, no Escrow Agent Indemnified Party shall have the right to be indemnified hereunder for any liability arising form the willful misconduct, bad faith, or gross negligence of such Escrow Agent Indemnified Party or breach of the terms of this Agreement. If any such action, claim, suit, demand or proceeding shall be brought or asserted against any Escrow Agent Indemnified Party, such Escrow Agent Indemnified Party shall promptly notify the Company and the Indemnitors’ Representative in writing and the Company and the Indemnitors’ Representative shall assume the defense thereof, including the retention of counsel. Such Escrow Agent Indemnified Party shall have the right to retain separate counsel in any such action, and to participate in the defense thereof, and the Company and Indemnitors’ Representative shall be jointly and severally responsible for all costs, fees and expenses)expenses associated with the employment of such separate counsel. This right of indemnification, interest compensation and penaltiesreimbursement shall survive the termination of this Agreement, and the resignation or removal of the Escrow Agent.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent undertakes to perform such duties as are specifically set forth in this Escrow Agreement only and shall have no duty under any other agreement or document notwithstanding their being referred to herein or attached hereto as an exhibit. The Escrow Agent shall not be liable except for the performance of such duties as are specifically set forth in this Escrow Agreement, and no implied covenants or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction except for its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Escrow Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI and the Partnership shall jointly and severally Parent hereby agrees to indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on . This right of indemnification shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of this Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder)Agent. BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including The costs and expenses (including reasonable legal fees of enforcing this right of indemnification shall also be paid by Parent and expensesthe Shareholders in the proportions set forth in this Section 7(b), interest and penalties.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the . Escrow Agent shall use have no duty to inquire into or investigate the standard care of customarily used by custodians of fundsvalidity, accuracy or content or any document delivered to it. The Escrow Agent shall will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice or opinion of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the advice, Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any its expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it.
(b) If conflicting demands are made or conflicting notices are served upon Escrow Agent with respect to the Escrow Account, then Escrow Agent will have the absolute right, at Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 9 or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. The If such interpleader suit is brought, then Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and Xxxxxxxx and the Holders will each pay Escrow Agent 50% percent of all costs, expenses and reasonable attorney's fees expended or incurred by Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Section 5 (such costs, fees and expenses being treated as extraordinary fees and expenses for the purposes of Section 8); provided, however, that Xxxxxxxx and the Holders shall be entitled to reimbursement from the Holders and Xxxxxxxx, respectively, of any extraordinary fees and expenses of Escrow Agent paid by Xxxxxxxx and the Holders, respectively, if Xxxxxxxx or the Holders, respectively, prevails in the resolution of such claims and rights, in accordance with Section 8.
(c) Each party hereto other than Escrow Agent, jointly and severally (each an "INDEMNIFYING PARTY" and together the "INDEMNIFYING PARTIES"), hereby covenants and agrees to reimburse, indemnify and hold harmless Escrow Agent, Escrow Agent's officers, directors, employees, counsel and agents (severally and collectively, "ESCROW AGENT"), from and against any loss, damage, liability or loss suffered, incurred by, or asserted against Escrow Agent (including amounts paid in settlement of any action, suit, proceeding, or claim brought or threatened to be brought and including reasonable expenses of legal counsel) arising out of, in connection with or based upon any act or omission by Escrow Agent (and/or any of its officers, directors, employees, counsel or agents) relating in any way to this Agreement or Escrow Agent's services hereunder. This indemnity shall exclude gross negligence and willful misconduct on Escrow Agent's part. Anything in this Agreement to the contrary notwithstanding, Escrow Agent shall not be liable for special, indirect or consequential loss or damage of any losses resulting from the investments made in accordance with this Agreement. In no event shall the kind (including but not limited to lost profits), even if Escrow Agent be liable for indirect, punitive, special has been advised of the likelihood of such loss or consequential damagesdamage and regardless of the form of action.
(bd) BRI and Each Indemnifying Party may participate at its own expense in the Partnership shall jointly and severally indemnify the Escrow Agent for, and hold it harmless against, defense of any loss, liability claim or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the action that may be asserted against Escrow Agent, arising out and if the Indemnifying Parties so elect, the Indemnifying Parties may assume the defense of such claim or action; PROVIDED, HOWEVER, that if a conflict of interest exists that would make it inappropriate, in connection with its carrying out the sole discretion of its duties hereunderEscrow Agent, including without limitation drawing on for the Letter same counsel to represent both Escrow Agent and the Indemnifying Parties, then Escrow Agent's retention of Creditseparate counsel shall be reimbursable as herein above provided. Escrow Agent's right to indemnification hereunder shall survive Escrow Agent's resignation or removal as Escrow Agent and shall survive the termination of this Agreement by lapse of time or otherwise.
(ce) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, hereby warrants that may be assessed against the Escrow Agent in will notify each Indemnifying Party by letter, or by telephone or telecopy confirmed by letter, of any such payment or other activities under this Agreement (other than taxes on the net income of the receipt by Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the a written assertion of a claim against Escrow Agent in writing with respect to the Agent, or any action commenced against Escrow Agent, within three business days after Escrow Agent's responsibility for withholding and other taxesreceipt of written notice of such claim. However, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree Agent's failure to indemnify and hold the Escrow Agent harmless notify each Indemnifying Party shall not operate to relieve an Indemnifying Party from any liability that it may have on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the this Section 5 unless such failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the prejudices such Indemnifying Party's rights.
(f) Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder either directly or by or through its agents or attorneys. Nothing in this Agreement shall be deemed to impose upon Escrow Agent any duty to qualify to do business or become subject to act as a fiduciary or otherwise in connection with or which arises out any jurisdiction other than the State of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesTexas.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither 6.1 The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only in a diligent and faithful manner and shall have no duty under any other agreement or document, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. misconduct.
6.2 The Escrow Agent shall not be responsible assumes no responsibility for the validity adequacy or sufficiency of this Agreement and shall not be responsible for any enforceability of the agreements referred security interest which Section 2.3 hereof purports to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementcreate. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made anyone except for its own negligence or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreementwillful misconduct. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
(b) BRI 6.3 The Purchaser and the Partnership shall jointly and severally Selling Stockholders hereby agree to indemnify the Escrow Agent and its officers, directors, employees and agents for, and hold it and them harmless against, any direct loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its the Escrow Agent carrying out of its duties hereunder, including without limitation drawing on provided that: (i) the Letter Purchaser shall be liable only for 50% of Credit.
such loss, liability or expense; and (cii) BRI the Selling Stockholders shall be liable only for 50% of such loss, liability or expense. This right of indemnification, compensation and reimbursement shall survive the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment termination of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Silicon Graphics International Corp)
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct misconduct, fraud or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, . In no event shall the Escrow Agent shall use the standard care of customarily used by custodians of fundsbe liable for punitive damages. The Escrow Agent shall will have no duty beyond good faith to inquire into or investigate the validity, accuracy or content of any document delivered to it. Escrow Agent will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice or opinion of counsel, including in-house its counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the advice, Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI In the event conflicting demands are made or conflicting notices are served upon Escrow Agent with respect to the Escrow Amount, Escrow Agent will have the absolute right, at Escrow Agent's election, to do any of the following: (i) resign so a successor can be appointed pursuant to Article 7 herein, (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction located in Tulsa County, Oklahoma (the "Stipulated Jurisdiction") requiring the parties to interplead and litigate in such court their several claims and rights among themselves, or (iii) notify the other parties in writing that it has received conflicting instructions and is refraining from taking action until it receives written instructions from both MHG and NESI. For the purpose of this Section 5(b) and for the enforcement of any court order, the parties each consent to the personal jurisdiction of the federal and State courts in the Stipulated Jurisdiction and waive any objection to the venue and rights to request dismissal on the grounds of forum non conveniens or similar doctrines. In the event an interpleader suit as described in clause (ii) above is brought and the Partnership shall jointly Escrow Amount is deposited as required by applicable procedural rules governing litigation in interpleader in the Stipulated Jurisdiction, Escrow Agent will be entitled (upon court order) to be fully released and severally indemnify discharged from all further obligations imposed upon it under this Agreement, and the party which does not prevail in such action will pay Escrow Agent all costs, expenses and reasonable attorney's fees expended or incurred by Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Article 5; provided, however, that if such action is settled, then, unless the parties otherwise agree, each of the parties will pay the Escrow Agent foran equal share all of such costs, expenses and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Creditfees.
(c) BRI and the Partnership jointly and severally hereby agree Each party to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on Escrow Agent), jointly and severally (each an "Indemnifying Party and together the net income of the "Indemnifying Parties") hereby covenants and agrees to reimburse, indemnify and hold harmless Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Agent, Escrow Agent's responsibility for withholding partners, employees, counsel and other taxesagents (severally and collectively, assessments "Escrow Agent"), from and against any damage, liability or other governmental chargesloss suffered, certifications and governmental reporting in connection with its acting as incurred by, or asserted against Escrow Agent under this Agreement. BRI including amounts paid in settlement of any action, suit, proceeding, or claim brought or threatened to be brought and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account including reasonable expenses of taxeslegal counsel, assessments or other governmental charges(collectively, including without limitation the withholding or deduction or the failure to withhold or deduct the same"Loss") arising out of, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises based upon any act or omission by Escrow Agent (and/or any of its officers, directors, employees, counsel or agents) relating in any way to this Agreement or Escrow Agent's services hereunder. This indemnity will exclude any indemnification for any Loss arising in whole or in part, directly or indirectly, from any gross negligence, fraud or willful misconduct on Escrow Agent's part.
(d) Each Indemnifying Party may participate at its own expense in the defense of any claim or action that may be asserted against Escrow Agent related to this Agreement, and if the Indemnifying Parties so elect, the Indemnifying Parties may assume the defense of such claim or action; provided, however, that, if there exists a conflict of interest that would make it inappropriate, in the sole discretion of Escrow Agent, for the same counsel to represent both Escrow Agent and the Indemnifying Parties, Escrow Agent's retention of separate counsel will be reimbursable as herein above provided. Escrow Agent's right to indemnification hereunder will survive Escrow Agent's resignation or removal as Escrow Agent and will survive the termination of this Agreement by lapse of time or otherwise.
(e) Escrow Agent hereby warrants that Escrow Agent will notify each Indemnifying Party by letter, or by telephone or telecopy confirmed by letter, of any receipt by Escrow Agent of a written assertion of a claim against Escrow Agent arising out of this Agreement, including costs or any action commenced against Escrow Agent arising out of this Agreement, within five (5) business days after Escrow Agent's receipt of written notice of such claim. However, Escrow Agent's failure to so notify each Indemnifying Party will not operate in any manner whatsoever to relieve an Indemnifying Party from any liability that it may have to Escrow Agent under this Article 5 or otherwise unless such failure by Escrow Agent to give such notice (or to give such notice within such five (5) business day period) materially prejudices such Indemnifying Party.
(f) Escrow Agent may execute any of its powers or responsibilities hereunder and expenses (including reasonable legal fees and expenses)exercise any rights hereunder either directly or by or through its agents or attorneys. Escrow Agent will have no liability for the conduct of any outside attorneys, interest and penaltiesaccountants or other similar professionals it retains. Nothing in this Agreement will be deemed to impose upon Escrow Agent any duty to qualify to do business or to act as a fiduciary or otherwise in any jurisdiction other than the State of Oklahoma.
Appears in 1 contract
Samples: Escrow Agreement (Network Systems International Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the . Escrow Agent shall use have no duty to inquire into or investigate the standard care of customarily used by custodians of fundsvalidity, accuracy or content or any document delivered to it. The Escrow Agent shall will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice or opinion of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the advice, Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any its expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it.
(b) If conflicting demands are made or conflicting notices are served upon Escrow Agent with respect to the Escrow Account, then Escrow Agent will have the absolute right, at Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 9 or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. The If such interpleader suit is brought, then Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and the Company and Holder will each pay Escrow Agent 50% percent of all costs, expenses and reasonable attorney's fees expended or incurred by Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Section 5 (such costs, fees and expenses being treated as extraordinary fees and expenses for the purposes of Section 8); provided, however, that the Company and Holder shall be entitled to reimbursement from Holder and the Company, respectively, of any extraordinary fees and expenses of Escrow Agent paid by the Company and Holder, respectively, if the Company or Holder, respectively, prevails in the resolution of such claims and rights, in accordance with Section 8.
(c) Each party hereto other than Escrow Agent, jointly and severally (each an "INDEMNIFYING PARTY" and together the "INDEMNIFYING PARTIES"), hereby covenants and agrees to reimburse, indemnify and hold harmless Escrow Agent, Escrow Agent's officers, directors, employees, counsel and agents (severally and collectively, "ESCROW AGENT"), from and against any loss, damage, liability or loss suffered, incurred by, or asserted against Escrow Agent (including amounts paid in settlement of any action, suit, proceeding, or claim brought or threatened to be brought and including reasonable expenses of legal counsel) arising out of, in connection with or based upon any act or omission by Escrow Agent (and/or any of its officers, directors, employees, counsel or agents) relating in any way to this Agreement or Escrow Agent's services hereunder. This indemnity shall exclude gross negligence and willful misconduct on Escrow Agent's part. Anything in this Agreement to the contrary notwithstanding, Escrow Agent shall not be liable for special, indirect or consequential loss or damage of any losses resulting from the investments made in accordance with this Agreement. In no event shall the kind (including but not limited to lost profits), even if Escrow Agent be liable for indirect, punitive, special has been advised of the likelihood of such loss or consequential damagesdamage and regardless of the form of action.
(bd) BRI and Each Indemnifying Party may participate at its own expense in the Partnership shall jointly and severally indemnify the Escrow Agent for, and hold it harmless against, defense of any loss, liability claim or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the action that may be asserted against Escrow Agent, arising out and if the Indemnifying Parties so elect, the Indemnifying Parties may assume the defense of such claim or action; PROVIDED, HOWEVER, that if a conflict of interest exists that would make it inappropriate, in connection with its carrying out the sole discretion of its duties hereunderEscrow Agent, including without limitation drawing on for the Letter same counsel to represent both Escrow Agent and the Indemnifying Parties, then Escrow Agent's retention of Creditseparate counsel shall be reimbursable as herein above provided. Escrow Agent's right to indemnification hereunder shall survive Escrow Agent's resignation or removal as Escrow Agent and shall survive the termination of this Agreement by lapse of time or otherwise.
(ce) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, hereby warrants that may be assessed against the Escrow Agent in will notify each Indemnifying Party by letter, or by telephone or telecopy confirmed by letter, of any such payment or other activities under this Agreement (other than taxes on the net income of the receipt by Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the a written assertion of a claim against Escrow Agent in writing with respect to the Agent, or any action commenced against Escrow Agent, within three business days after Escrow Agent's responsibility for withholding and other taxesreceipt of written notice of such claim. However, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree Agent's failure to indemnify and hold the Escrow Agent harmless notify each Indemnifying Party shall not operate to relieve an Indemnifying Party from any liability that it may have on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the this Section 5 unless such failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the prejudices such Indemnifying Party's rights.
(f) Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder either directly or by or through its agents or attorneys. Nothing in this Agreement shall be deemed to impose upon Escrow Agent any duty to qualify to do business or become subject to act as a fiduciary or otherwise in connection with or which arises out any jurisdiction other than the State of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesTexas.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Upon termination of this Escrow Agreement by disbursement of the Escrow Funds as provided herein, the Escrow Agent shall be fully and finally released and discharged from any and all duties, obligations, and liabilities hereunder. In the event of a dispute between any of the parties hereto as to their respective rights and interests hereunder, the Escrow Agent shall be entitled to hold any and all funds then in its possession hereunder until such dispute shall have been resolved by the parties in dispute and the Escrow Agent has been notified by instrument jointly signed by all of the parties in dispute, or until such dispute shall have been finally adjudicated by a court of competent jurisdiction. In the event of a dispute, the Escrow Agent may file an interpleader action and pay the funds then in its possession hereunder into the registry of the court. Neither the Escrow Agent nor any of its directors, officers officers, or employees shall incur liability with respect be liable to anyone for any action taken or suffered omitted to be taken by it or any of its directors, officers, or employees hereunder except in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or the case of gross negligence; provided, that with respect to the custody of the Cash Collateral bad faith, or willful misconduct. Seller and Escrow FundPurchaser shall, jointly and severally, indemnify the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity and hold it harmless without limitation from and against any loss, liability, or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy expense of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith nature incurred by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI and the Partnership shall jointly and severally indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out this Escrow Agreement or with the administration of its duties hereunder, including including, without limitation drawing on the Letter limitation, legal fees and expenses and other costs and expenses of Credit.
(c) BRI and the Partnership jointly and severally hereby agree defending or preparing to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and defend against any taxesclaim of liability, additions for late paymentunless such loss, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment liability or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to expense is caused by the Escrow Agent's responsibility for withholding and other taxes’s gross negligence, assessments bad faith, or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.willful
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directorsshall only have those duties as are expressly set forth in this Agreement, officers or employees and no implied duties shall be read into this Agreement. The Escrow Agent will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice or opinion of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice or opinion, the Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for obligated to take any losses resulting legal action or other action hereunder which might, in its judgment, involve any expense or liability unless it shall have been furnished with acceptable indemnification.
(b) In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Escrow Account, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 10 hereof or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and Buyer will pay the Escrow Agent (subject to reimbursement from the investments made in accordance with Seller pursuant to Section 9 hereof) all costs, expenses and reasonable attorney's fees expended or incurred by the Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Agreement. Section 6 (such costs, fees and expenses will be treated as extraordinary fees and expenses for the purposes of Section 9 hereof).
(c) In no event shall the Escrow Agent be liable for any indirect, punitive, special or consequential damages, or any amount in excess of the value of the pledged collateral (as of the date of the action or omission giving rise to liability).
(bd) BRI and the Partnership The Escrow Agent shall jointly and severally indemnify in no instance be under any duty to give any property held by it hereunder any greater degree of care than it gives its own similar property. In no event shall the Escrow Agent forhave any obligation to advance or risk funds.
(e) The Escrow Agent shall not be deemed to have notice of any fact, claim or demand with respect hereto unless actually known by an officer charged with responsibility for administering this Agreement or unless in writing received by the Escrow Agent and hold it harmless againstmaking specific reference to this Agreement. If any notice, certificate or other document is required to be delivered to the Escrow Agent and any lossother person, liability the Escrow Agent may assume without inquiry that any such document which the Escrow Agent has received has also been received by such other person.
(f) All indemnifications contained in this Agreement shall survive the resignation or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part removal of the Escrow Agent, arising out and shall survive the termination of this Agreement.
(g) The Escrow Agent is not responsible for the recitals appearing in this Agreement. The recitals shall be deemed to be statements of the other parties to this Agreement.
(h) The Escrow Agent has no responsibility for the sufficiency of this Agreement for any purpose. Without limiting the foregoing, if any security interest is referred to herein, the Escrow Agent shall have no responsibility for, and makes no representation or warranty as to, the creation, attachment or perfection of any such security interest or the sufficiency of this Agreement therefor.
(i) Nothing in this Agreement shall obligate the Escrow Agent to qualify to do business or act in any jurisdiction in which it is not presently qualified to do business, or be deemed to impose upon the Escrow Agent the duties of a trustee. The duties of the Escrow Agent under this Agreement are strictly ministerial in nature.
(j) In no event shall the Escrow Agent have any liability for any failure or inability of any of the other parties to perform or observe its duties under the Agreement, or by reason of a breach of this Agreement by either of the other parties hereto. In no event shall the Escrow Agent be obligated to take any action against any of the other parties to compel performance hereunder.
(k) The Escrow Agent shall in no instance be obligated to commence, prosecute or defend any legal proceedings in connection with its carrying out of its duties hereunderherewith. The Escrow Agent shall be authorized and entitled, however, in any instance to commence, prosecute or defend any legal proceedings in connection herewith, including without limitation drawing on the Letter any proceeding it may deem necessary to resolve any matter or dispute, to obtain a necessary declaration of Creditrights, or to appoint a successor upon resignation (and after failure by Buyer to appoint a successor, as provided hereinafter).
(cl) BRI and In the Partnership jointly and severally hereby agree to assume event of any and all obligations imposed now ambiguity or hereafter by any applicable tax law with respect to the payment of Escrow Funds uncertainty under this Agreement, and to indemnify and hold or in any notice, instruction, or other communication received by the Escrow Agent harmless from and against any taxeshereunder, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent may, in any its discretion, refrain from taking action, and may retain the pledged collateral until and unless it receives written instruction signed by Buyer and Seller which eliminates such payment uncertainty or other activities under this Agreement ambiguity.
(other than taxes on the net income of the m) The Escrow Agent attributable shall have no liability for the actions or omissions of any book-entry depository, transfer agent, nominee, correspondent, subagent or subcustodian. The Escrow Agent shall be permitted to use the payment services of fees hereunder). BRI any recognized securities depository or clearing agent, such as (without limitation) The Depository Trust Company and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxesFederal Reserve Bank book-entry securities system, assessments or other governmental chargesas applicable, certifications and governmental reporting in connection with its acting as any securities or investments held hereunder.
(n) The Escrow Agent under this Agreementshall not be responsible or liable for delays or failures in performance resulting from acts beyond its control. BRI and Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, laws or governmental regulations changes or superimposed after the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxesfact, assessments fire, communication line failures, power failures, computer viruses, earthquakes or other governmental chargesdisasters, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be unavailability of Federal Reserve Bank wire or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiestelex facilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Network 1 Security Solutions Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall incur any liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not have no duty to inquire into or investigate the validity, accuracy or content of any document delivered to it nor shall the Escrow Agent be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be responsible for any other agreements between the parties hereto, but shall be obligated only for the performance of such duties as are specifically set forth in this Agreement.
(b) In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Escrow Shares, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 7 hereof, or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and the Company will pay the Escrow Agent all costs, expenses and reasonable attorneys' fees expended or incurred by the Escrow Agent pursuant to the exercise of the Escrow Agent's rights under this Section 5(b) (such costs, fees and expenses will be treated as extraordinary fees and expenses for the purposes of Section 4 hereof).
(c) The Company and the Optionor, jointly and severally, hereby agree to indemnify the Escrow Agent for, and hold it harmless against, any loss, damage, liability or expense incurred without gross negligence or willful misconduct on the part of Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder including, but not limited to reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim or liability in the premises. As among themselves, each of the Optionor and the Company shall be liable for any losses resulting from the investments made in accordance with this Agreementone-half of such amounts. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI . In addition, Optionor and the Partnership shall Company, jointly and severally severally, agree to indemnify and hold the Escrow Agent for, harmless from any liabilities incurred due to the establishment and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part maintenance of the Escrow Agent's account with UBS Paine Webber, Inc., includinx xxx xxx xxl obligations, indemnities, fees, charges, interest, and expenses (including attorneys' fees) incurred or arising out of or in connection with its carrying out such account. The provisions of its duties hereunder, including without limitation drawing on the Letter Section 5(c) shall survive termination of Creditthis Agreement.
(cd) BRI The Optionor and the Partnership Company, jointly and severally hereby severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment release of any Escrow Funds Shares under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment release or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder)Agreement. BRI The Optionor and the Partnership Company undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI The Optionor and the Partnership Company, jointly and severally hereby severally, agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which that arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties. The provisions of Section 5(d) shall survive termination of this Agreement.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the . Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred Agreement. Escrow Agent undertakes to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of perform such duties as are specifically set forth in this Escrow Agreement. Without limiting , and no implied covenants or obligations shall be read into the foregoing, Agreement against the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger AgreementAgent. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the advice, Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable responsible for determining the amount of Escrow Cash to be transferred, disbursed or held, and may rely upon, and shall be fully protected in relying upon, any losses resulting written direction from Buyers, Sellers and Shareholders. Attached hereto as Exhibit D are the investments made in accordance with this Agreement. In no event shall names, titles and specimen signatures of each of the persons who are authorized, on behalf of the parties hereto, to execute and deliver written notices and directions to Escrow Agent be liable for indirect, punitive, special or consequential damagesAgent.
(b) BRI and In the Partnership shall jointly and severally indemnify event conflicting demands are made or conflicting notices are served upon Escrow Agent with respect to the Escrow Account, Escrow Agent forwill have the absolute right, but no absolute duty or obligation, at Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to SECTION 10 hereof or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and hold it harmless againstBuyer will pay Escrow Agent (subject to reimbursement from Sellers and Shareholders in the amount determined pursuant to SECTION 9 hereof) all costs, any loss, liability or expense (including expenses and reasonable attorneys' fees expended or incurred by Escrow Agent pursuant to the exercise of Escrow Agent's rights under this SECTION 5 hereof (such costs, fees and expensesexpenses will be treated as extraordinary fees and expenses for the purposes of SECTION 9 hereof).
(c) Each other party hereto, jointly and severally (each an "INDEMNIFYING PARTY" and together the "INDEMNIFYING PARTIES"), hereby covenants and agrees to reimburse, indemnify and hold harmless Escrow Agent, Escrow Agent's employees and agents (severally and collectively, "ESCROW AGENT'S INDEMNIFIED PARTIES"), from and against any loss, damage, liability or loss suffered, incurred without by, or asserted against Escrow Agent's Indemnified Parties (including amounts paid in settlement of any action, suit, proceeding, or claim brought or threatened to be brought and including reasonable expenses of legal counsel) arising out of, in connection with or based upon any act or omission by Escrow Agent relating in any way to this Agreement or Escrow Agent's services hereunder. This indemnity shall exclude negligence, gross negligence or willful misconduct on the part of the Escrow Agent, arising out 's part. This right of or in connection with its carrying out indemnification shall survive the termination of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment resignation or other activities under this Agreement (other than taxes on the net income removal of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including The costs and expenses (including reasonable legal fees and expenses), interest and penaltiesof enforcing this right of indemnification shall also be paid by the Indemnifying Parties.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directorsSubject to Section 7(b), officers or employees shall incur liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Blue Lake or CPR or any other party or parties for any losses, costs, claims, damages, liabilities or expenses which they may suffer or incur by reason of any one or more of the following:
(i) any action taken or omitted to be taken in accordance with the terms hereof; or
(ii) any action taken or omitted to be taken in reliance upon any document, including any written instruction or authorization to disburse as provided in this Agreement, all of which writings Escrow Agent shall be entitled to rely upon as to due execution, validity and effectiveness and also as to the truth and accuracy of the information contained therein.
(b) Notwithstanding any other provision set forth in this Agreement, Escrow Agent’s liability hereunder shall be limited to any actions taken or omitted to be taken which are found by a court to be willful misconduct or fraud.
(c) Escrow Agent shall not be required to take institute legal proceedings of any action hereunder involving kind and shall not be required to defend any expense unless legal proceedings (except for any legal proceedings instituted by the payment parties hereto to enforce their rights under Section 7(b) herein).
(d) Subject to Section 7(b), Escrow Agent shall not be responsible or liable in any way for the sufficiency or accuracy of the form or substance or validity or genuineness of (i) any document or instrument now or hereafter deposited as Escrow Shares, (ii) any endorsement on any such expense is made document or provided instrument, or (iii) any notice or document or claim or objection submitted to the Escrow Agent in connection with its duties hereunder. Subject to Section 7(b), nor shall the Escrow Agent be responsible or liable in any way for (A) any lack of endorsement on any such document or instrument, (B) the truth or accuracy of any of the descriptions or recitals in a manner reasonably satisfactory any such document or instruction or (C) whether any such document or instruction complies or fails to itcomply with the terms of this Agreement or any other agreement between the parties. Subject to Section 7(b), nor shall the Escrow Agent be responsible or liable in any way on account of the identity, authority or rights of any persons who do, or purport to, execute or deliver any such notice or other document hereunder.
(e) The Escrow Agent shall not be liable for have any losses resulting from the investments made in accordance right or obligation to vote, respond to a tender offer, or take any other action with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI and the Partnership shall jointly and severally indemnify the Escrow Agent for, and hold it harmless against, respect to any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of Shares or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold other interests that are included within the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income Shares except upon receipt of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesinstructions signed by CPR.
Appears in 1 contract
Samples: Escrow Agreement (Clearpoint Business Resources, Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall incur liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses action taken or omitted to be taken by it while acting in good faith and in the exercise of its best judgment, under this Escrow Agreement or any instrument executed pursuant hereto, or in connection herewith or therewith, except for its own willful, criminal misconduct or gross negligence, nor be responsible for the effectiveness, enforceability, validity or due execution of this Escrow Agreement or any instrument executed pursuant hereto including, without limitation, the Escrow Documents, as to the parties to this Escrow Agreement and any third parties. The Escrow Agent shall be entitled to rely upon advice of counsel concerning legal matters and upon any notice, consent, certificate, statement or writing which it believes to be genuine and to have been presented by a proper person. In the event of any disagreement between any of the parties to this Escrow Agreement, or between them or any of them and any other person, resulting from the investments in divergent or adverse claims or demands being made in accordance connection with the subject matter of this Escrow Agreement. In no , or in the event shall the Escrow Agent, in good faith, is in doubt as to what action should be taken hereunder, the Escrow Agent be liable for indirectmay, punitiveat its option, special refuse to comply with any claims or consequential damages.
(b) BRI demands on it, or refuse to take any other action hereunder so long as such disagreement continues or such doubt exists, and the Partnership shall jointly and severally indemnify in any such event, the Escrow Agent forshall not be or become liable in any way or to any person for its good faith failure or refusal to act, the Escrow Agent shall be entitled to continue to so refrain from acting until (i) the rights of the parties shall have been fully and hold finally adjudicated by a court of competent jurisdiction or (ii) all differences shall have been adjusted and all doubt resolved by agreement among all of the interested persons and the Escrow Agent shall be notified thereof in writing signed by all such persons. Further, in the event of any such dispute or controversy, the Escrow Agent may, if, in its sole discretion, it harmless againstdeems appropriate, institute a declaratory judgment or other appropriate legal action in any losscourt of competent jurisdiction to determine the rights of the parties involved. Should action be instituted, liability or expense (including should the Escrow Agent become involved in litigation in any manner whatsoever on account of this Escrow Agreement or the FAA Closing Documents or the Escrow Funds, Seller and Buyer, jointly and severally, hereby bind and obligate themselves, their heirs, personal representatives, successors and assigns to pay Escrow Agent the *** Denotes portions omitted pursuant to a request for confidentiality under Rule 24b-2 of the Securities Exchange Act of 1934. A copy of this agreement with the omitted information intact has been filed separately with the Securities and Exchange Commission. reasonable attorneys' ’ fees and incurred by Escrow Agent to retain legal counsel, as well as any other disbursements, expenses) incurred without , losses, costs or damages in connection with or resulting from such litigation, except such as may have been caused by the gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income . The rights of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account Section 7 are cumulative of taxes, assessments all other rights which it may have by law or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesotherwise.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not have no duty to inquire into or investigate the validity, accuracy or content of any document delivered to it nor shall the Escrow Agent be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Shareholders Indemnity Shares, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 9 hereof, or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the Partnership shall parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and Parent will pay the Escrow Agent all costs, expenses and reasonable attorneys' fees expended or incurred by the Escrow Agent pursuant to the exercise of the Escrow Agent's rights under this Section 6(b) (such costs, fees and expenses will be treated as extraordinary fees and expenses for the purposes of Section 5 hereof).
(c) Parent and Shareholders, jointly and severally severally, hereby agree to indemnify the Escrow Agent for, and hold it harmless against, any loss, damage, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder. As among themselves, including without limitation drawing on each of Parent and Shareholders shall be liable for one-half (1/2) of such amounts and Parent shall be entitled to reimbursement from the Letter Shareholders Indemnity Shares of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment Shareholders' share of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment loss, liability or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesexpense.
Appears in 1 contract
Samples: Escrow Agreement (Nichols Robert D)
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document notwithstanding it being referred to herein or attached hereto as an exhibit. The Escrow Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorizedauthorized and executed by the proper parry or parties, nor for any other good faith action or inaction except for its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from incidental, consequential or punitive damages. The parties hereto acknowledge that the investments made in accordance with this Agreement. In no event foregoing indemnities shall survive the resignation or the removal of the Escrow Agent be liable for indirect, punitive, special or consequential damagesthe termination of this Agreement.
(b) BRI Acquiror and the Partnership NextWave Opco shall jointly and severally each indemnify the Escrow Agent for, and hold it harmless against, 50% of any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on . This right of indemnification shall survive the Letter termination of Creditthis Agreement and the resignation or removal of the Escrow Agent. Acquiror and NextWave Opco shall each pay 50% of such indemnification costs and expenses.
(c) BRI and In the Partnership jointly and severally hereby agree to assume event that (i) any and all obligations imposed now or hereafter by any applicable tax law dispute shall arise between the parties with respect to the payment disposition or disbursement of Escrow Funds under this Agreement, and to indemnify and hold any of the assets held hereunder or (ii) the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and shall be uncertain as to how to proceed in a situation not explicitly addressed by the terms of this Agreement (whether because of conflicting demands by the other expenses, that may be assessed against parties hereto or otherwise) the Escrow Agent in shall be permitted to: (A) refrain from taking any such payment or other activities under action contemplated by this Agreement and/or (B) interplead all of the assets held hereunder into a Federal court sitting in the State of New York or a New York State Court, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets. The parties hereto (other than taxes on the net income of Escrow Agent) further agree to pursue any redress or recourse in connection with such a dispute without making the Escrow Agent attributable a party to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesit.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of fundsmisconduct. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated have no duty to inquire as to into or investigate the validity, accuracy or content of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation document delivered to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementit. In all questions arising under this Agreement, the Escrow Agent may rely on the advice or opinion of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice advice, the Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it.
(b) In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Escrow Funds, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 10.12 hereof or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and Cellegy will pay the Escrow Agent's costs, expenses and attorney's fees expended or incurred by the Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Section 10.11(b). However, Cellegy shall be entitled to reimbursement from the Stockholders (solely out of Escrow Funds) of such fees and expenses of the Escrow Agent in the event Cellegy prevails in such dispute.
(c) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder either directly or by or through the Escrow Agent's agents or attorneys. The Escrow Agent shall not have no liability for the conduct of any outside attorneys, accountants or other similar professionals it retains. Nothing in this Agreement shall be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the deemed to impose upon Escrow Agent be liable for indirect, punitive, special any duty to qualify to do business or consequential damages.
(b) BRI and the Partnership shall jointly and severally indemnify the Escrow Agent for, and hold it harmless against, any loss, liability to act as a fiduciary or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent otherwise in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesjurisdiction.
Appears in 1 contract
Samples: Share Purchase Agreement (Cellegy Pharmaceuticals Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor its partners, employees, agents or associates shall be liable for any claim, proceeding, loss, damage, liability or expense of its directors, officers any kind or employees shall incur liability with respect to nature caused directly or indirectly by any action taken or suffered omitted by it any of them under or in reliance upon connection with this Escrow Agreement or as a result of relying on any notice, direction, instruction, consent, statement communication or other documents document believed by it any of them to be genuine and duly authorizedcorrect and to have been communicated or signed by the person by whom it purports to be communicated or signed, nor for other action or inaction except its own willful inaction, unless caused by gross negligence or wilful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of fundsAgent. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and the Escrow Agent shall not be liable to anyone for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice advice. If the Escrow Agent believes it to be reasonably necessary to consult with counsel concerning any of its duties hereunder, or any disputes or questions that may arise between the parties to this Agreement, the Vendor and the Purchaser shall not be liable to anyonejointly and severally responsible for all of the costs, expenses and legal fees and disbursements, including costs of legal counsel, incurred by Escrow Agent. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI The Vendor and the Partnership shall Purchaser hereby agree jointly and severally to indemnify the Escrow Agent forAgent, its partners, employees, agents and hold it harmless againstassociates from and against all claims, proceedings, losses, damages, liabilities and expenses of every description which may be incurred by the Escrow Agent, its partners, employees, agents and associates and which are in any lossway related to or arise out of this Escrow Agreement, liability or expense (including reasonable attorneys' fees and expenses) incurred without except any such matters resulting from gross negligence or willful misconduct on the part of the Escrow Agent, arising out its partners, employees, agents and associates and fees payable to Escrow Agent for acting as such which are the sole responsibility of the Purchaser (except for any fees or expenses incurred in connection with its carrying out the transfer of its duties hereunderEscrow Shares, including without limitation drawing on which fees and expenses shall be the Letter sole responsibility of Creditthe Vendor). This indemnity shall survive the termination of the escrow arrangements provided for in this Escrow Agreement.
(c) BRI and the Partnership jointly and severally hereby agree The Escrow Agent shall be able to assume any and all obligations imposed now or hereafter by any applicable tax law with respect resign upon ten (10) days' prior written notice to the payment of Escrow Funds under parties to this Agreement, and to indemnify and hold . If the Escrow Agent harmless from resigns as aforesaid, a replacement escrow agent will be appointed by the other parties hereto jointly, and against any taxesfailing such appointment, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction Vendor or the failure Purchaser may apply to withhold a court of competent jurisdiction in Ontario, on such notice as such Court may direct for the appointment of a new escrow agent.
(d) Notwithstanding anything to the contrary herein, if any disputes arise out of this Agreement or deduct any process is commenced against the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out matter of this Agreement, including court orders, garnishees or any other processes, the Escrow Agent is hereby empowered and entitled to comply with any orders, writs, judgements or decrees or, if it deems fit, to deliver the subject matter of the escrow to the Courts of Ontario.
(e) The Escrow Agent shall not be obligated to take any legal action hereunder which might, in the Escrow Agent’s judgment, involve any expense or liability unless the Escrow Agent shall have been furnished with a reasonable retainer or indemnity.
(f) The Escrow Agent shall not be bound in any way by any other contract or agreement between the parties hereto whether or not the Escrow Agent has knowledge thereof or of its terms and conditions and the Escrow Agent’s only duty, liability and responsibility shall be to hold and deal with the Escrow Funds as herein directed.
(g) The Escrow Agent shall be entitled to assume that any notice and evidence received by the Escrow Agent pursuant to these instruments from the other parties to this Agreement has been duly executed by the party by whom it purports to have been signed and Escrow Agent shall not be obligated to enquire into the sufficiency or authority of any signatures appearing on such notice or evidence.
(h) In the event of any disagreement between any of the parties to this Agreement or between them or any of them and any other person, resulting in adverse claims or demands being made in connection with the Escrowed Funds, or in the event that the Escrow Agent, in good faith, is in doubt as to what action the Escrow Agent should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on the Escrow Agent or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agent shall not be or become liable in any way or to any person for the Escrow Agent’s failure or refusal to act, and the Escrow Agent shall be entitled to continue to refrain from acting until (i) the rights of all parties shall have been finally adjudicated by a court of competent jurisdiction or (ii) all differences and all doubt resolved by agreement among all of the interested parties, and the Escrow Agent shall have been notified thereof in writing signed by all such parties. The Escrow Agent shall be entitled to apply to a court of competent jurisdiction for directions as to any acts or decisions to be made by the Escrow Agent and the Vendor and the Purchaser shall be jointly and severally responsible to pay and indemnify the Escrow Agent for all costs associated with any such court applications. In the event that the Escrow Agent should commence any action to determine any such conflict between the parties, including but not limited to an action in the nature of an interpleader, the Escrow Agent shall, upon delivery of the Escrowed Shares to a court of competent jurisdiction, be ipso facto released and expenses discharged from any and all duties and obligations imposed upon the Escrow Agent hereunder with respect to the subject matter of such action. Notwithstanding the foregoing, the Escrow Agent shall provide the Purchaser and the Vendor ten (including reasonable legal fees 10) days written notice prior to commencing any such action and expenses)during that period shall act reasonably and in good faith in facilitating a resolution of any such conflict between the parties. The Escrow Agent’s rights under this paragraph are cumulative of all other rights which Escrow Agent may have by law or otherwise.
(i) Each party hereto (other than the Escrow Agent) waives any claims or demands against the Escrow Agent and its principals with respect to all acts taken by the Escrow Agent in conformance with this Escrow Agreement. The Escrow Agent shall have no duty to take any action other than as specifically provided for in this Escrow Agreement, interest and penaltiesshall have no liability for any non-action if such action has been restrained by any order of any court or administrative agency or if, in its sole discretion, it determines that any such action would violate any law or governmental regulation.
Appears in 1 contract
Samples: Asset Purchase Agreement
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only each of which are solely ministerial in nature, and shall have no duty under or obligation to determine compliance with, any other agreement or document notwithstanding their being referred to herein or attached hereto as an exhibit. The Escrow Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall not be deemed to be a fiduciary and shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction except for its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages whatsoever, even if the Escrow Agent has been advised of the likelihood of such damages.
(b) BRI and the Partnership shall jointly and severally Parent hereby agrees to indemnify the Escrow Agent Agent, its officers, directors, employees and agents for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder. This right of indemnification shall survive the termination of this Agreement, including without limitation drawing on and the Letter resignation of Creditthe Escrow Agent. The costs and expenses of enforcing this right of indemnification shall also be paid by Parent.
(c) BRI In the event that the Escrow Agent should at any time be (i) confronted with inconsistent or conflicting claims or demands by the other parties hereto or (ii) unsure of its duties hereunder, the Escrow Agent shall have the right to interplead the parties in any California court or any court of competent jurisdiction and request that such court determine the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law respective rights of the parties with respect to the payment of Escrow Funds under this AgreementAgreement and, and to indemnify and hold upon doing so, the Escrow Agent harmless shall be released from any obligations or liability to the other parties as a consequence of any such claims or demands. The Escrow Agent may consult counsel satisfactory to it, including in-house counsel, and against will be protected in respect of any taxesaction taken or omitted in reliance thereon.
(d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, additions for late payment, interest, penalties and other expenses, that may either directly or by or through its agents or attorneys. Nothing in this Agreement shall be assessed against deemed to impose upon the Escrow Agent any duty to qualify to do business in any such payment jurisdiction other than California. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or other activities under pass upon the validity, binding effect, execution or sufficiency of this Agreement (other than taxes on the net income or of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments any amendment or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiessupplement hereto.
Appears in 1 contract
Samples: Merger Agreement (Quokka Sports Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall have no duty to inquire into or investigate the validity, accuracy or content of any document delivered to it. The Escrow Agent will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice or opinion of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice advice, the Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The .
(b) In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Escrow Account, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 9 hereof or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and ISI will pay the Escrow Agent all costs, expenses and reasonable attorney's fees expended or incurred by the Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Section 5 (such costs, fees and expenses will be treated as extraordinary fees and expenses for the purposes of Section 8 hereof). ISI shall not be liable for any losses resulting entitled to reimbursement from the investments made Holders of any extraordinary fees and expenses of Escrow Agent in accordance the event ISI prevails in such dispute pursuant to Section 8 hereof.
(c) Each other party hereto, jointly and severally (each an "Indemnifying Party" and together the "Indemnifying Parties"), hereby covenants and agrees to reimburse, indemnify and hold harmless Escrow Agent, Escrow Agent's officers, directors, employees, counsel and agents (severally and collectively, "Escrow Agent"), from and against any loss, damage, liability or loss suffered, incurred by, or asserted against Escrow Agent (including amounts paid in settlement of any action, suit, proceeding, or claim brought or threatened to be brought and including reasonable expenses of legal counsel) arising out of, in connection with or based upon any act or omission by Escrow Agent (and/or any of its officers, directors, employees, counsel or agents) relating in any way to this AgreementAgreement or Escrow Agent's services hereunder. In This indemnity shall exclude gross negligence and willful misconduct on Escrow Agent's part. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for indirectspecial, punitive, special indirect or consequential damagesloss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(bd) BRI and Each Indemnifying Party may participate at its own expense in the Partnership shall jointly and severally indemnify the defense of any claim or action that may be asserted against Escrow Agent forAgent, and hold if the Indemnifying Parties so elect, the Indemnifying Parties may assume the defense of such claim or action; provided, however, that if there exists a conflict of interest that would make it harmless againstinappropriate, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on in the part sole discretion of the Escrow Agent, arising out for the same counsel to represent both Escrow Agent and the Indemnifying Parties, Escrow Agent's retention of separate counsel shall be reimbursable as herein above provided. Escrow Agent's right to indemnification hereunder shall survive Escrow Agent's resignation or in connection with its carrying out removal as Escrow Agent and shall survive the termination of its duties hereunder, including without limitation drawing on the Letter this Agreement by lapse of Credittime or otherwise.
(ce) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, hereby warrants that may be assessed against the Escrow Agent in will notify each Indemnifying Party by letter, or by telephone or telecopy confirmed by letter, of any such payment or other activities under this Agreement (other than taxes on the net income of the receipt by Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the a written assertion of a claim against Escrow Agent in writing with respect to the Agent, or any action commenced against Escrow Agent, within ten (10) business days after Escrow Agent's responsibility for withholding and other taxesreceipt of written notice of such claim. However, assessments or other governmental charges, certifications and governmental reporting Escrow Agent's failure to so notify each Indemnifying Party shall not operate in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree any manner whatsoever to indemnify and hold the Escrow Agent harmless relieve an Indemnifying Party from any liability that it may have otherwise than on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the this Section 5.
(f) Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder either directly or by or through its agents or attorneys. The Escrow Agent shall have no liability for the conduct of any outside attorneys, accountants or other similar professionals it retains. Nothing in this Agreement shall be deemed to impose upon Escrow Agent any duty to qualify to do business or become subject to act as a fiduciary or otherwise in connection with or which arises out any jurisdiction other than the State of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesCalifornia.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Integrated Systems Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this the Escrow Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it.
(b) The Buyer and the Indemnifying Stockholders hereby, jointly and severally, agree to indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence or willful misconduct on the part of Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder. The Escrow Agent Buyer, on the one hand, and the Indemnifying Stockholders, on the other hand, shall not each be liable for any losses resulting from the investments made in accordance with this Agreementone- half of such amounts. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI . The Buyer and the Partnership shall Indemnifying Stockholders, jointly and severally indemnify the Escrow Agent forseverally, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of the Escrow Funds Account under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, assessments, additions for late payment, governmental charges, including, without limitation, withholdings or deductions or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, including costs and expenses (including reasonable legal fees and expenses), interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereundereach a "Liability"). BRI The Buyer and the Partnership Indemnification Representative undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and ; provided, -------- however, that the Partnership jointly and severally hereby agree indemnity in the foregoing sentence will not apply to indemnify and hold the ------- extent that a Liability results from the Escrow Agent's gross negligence or willful misconduct, which shall include failure to follow such written instructions. The Escrow Agent harmless from any shall have no more or less responsibility or liability on account of taxes, assessments any action or other governmental charges, including without limitation the withholding omission of any book-entry depository or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which subescrow agent employed by the Escrow Agent may be than any such book entry depository or become subject in connection with subescrow agent has to the Escrow Agent, except to the extent that such action or which arises out omission of this Agreementany book entry depository or subescrow agent was caused by the Escrow Agent's own gross negligence, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesbad faith or willful misconduct.
Appears in 1 contract
Samples: Escrow Agreement (Idx Systems Corp)
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall incur any liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, instruction consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not have no duty to inquire into or investigate the validity accuracy or content of any document delivered to it nor shall the Escrow Agent be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, Agreement the Escrow Agent may rely on the thc advice of counsel, including in-house counsel, and for anything any-thing done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable responsible for any losses resulting from of the investments made agreements referred to herein, including the Registration Statement, but shall be obligated only for the performance of such duties as are specifically set forth in accordance with this Agreement.
(b) In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of thc following: (i) resign so a successor can be appointed hereof, or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement. and Company will pay the Escrow Agent all costs, expenses and reasonable attorneys' fees expended or incurred by the Escrow Agent pursuant to the exercise of the Escrow Agent `s rights under this Section 6(b) (such costs, fees and expenses will be treated as extraordinary fees and expenses for the purposes of Section 3 hereof).
(c) The Company hereby agrees to indemnify the Escrow Agent for, and hold it harmless against, any loss, damage liability on expense incurred without gross negligence or willful misconduct on the part of Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder including, but not limited to reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim or liability in the premises. In the event of any such claim of indemnity by the Escrow Agent, the Company shall advance immediately available funds in an amount sufficient to cover such costs or expenses, up to an aggregate amount of $5O,OOO for all such claims. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(bd) BRI and the Partnership shall jointly and severally indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree The Company agrees to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment release of any Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment release or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder)Agreement. BRI and the Partnership undertake The Company undertakes to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree The Company agrees to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 1 contract
Samples: Escrow Agreement (Roex Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the . Escrow Agent shall use will have no duty to inquire into or investigate the standard care validity, accuracy or content of customarily used by custodians of fundsany document delivered to it. The Escrow Agent shall will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice or opinion of counsel, including in-house its counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the advice, Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI In the event conflicting demands are made or conflicting notices are served upon Escrow Agent with respect to the Escrow Account, Escrow Agent will have the absolute right, at Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 5 or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction located in the County of Kent, Delaware (the "Stipulated Jurisdiction") requiring the parties to interplead and litigate in such court their several claims and rights among themselves. For the purpose of this Section 3(b), the parties each consent to the personal jurisdiction of the federal and state courts in the Stipulated Jurisdiction and waive any objection to the venue (except those arising from subject-matter jurisdiction of the court) and rights to request dismissal on the grounds of forum non conveniens or similar doctrines. In the event such interpleader suit is brought and Escrow Shares are deposited as required by applicable procedural rules governing litigation in interpleader in the Stipulated Jurisdiction, Escrow Agent will be entitled (upon court order) to be fully released and discharged from all further obligations imposed upon it under this Agreement, and Company and the Partnership shall Stockholders will equally pay Escrow Agent all costs, expenses and reasonable attorney's fees expended or incurred by Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Section 3 (such costs, fees and expenses will be treated as extraordinary fees and expenses for the purposes of Section 4). Either Company or the Stockholders will be entitled to reimbursement from the other party of any extraordinary fees and expenses of Escrow Agent in the event that such party prevails in such dispute.
(c) Each party to this Agreement (other than Escrow Agent), jointly and severally (each an "Indemnifying Party" and together the "Indemnifying Parties") hereby covenants and agrees to reimburse, indemnify the Escrow Agent for, and hold it harmless againstEscrow Agent, Escrow Agent's officers, directors, employees, counsel and agents (severally and collectively, "Escrow Agent"), from and against any lossdamage, liability or expense loss suffered, incurred by, or asserted against Escrow Agent (including amounts paid in settlement of any action, suit, proceeding, or claim brought or threatened to be brought and including reasonable attorneys' fees and expensesexpenses of legal counsel, collectively, "Loss") incurred without arising out of, in connection with or based upon any act or omission by Escrow Agent (and/or any of its officers, directors, employees, counsel or agents) relating in any way to this Agreement or Escrow Agent's services hereunder. This indemnity will exclude any indemnification for any Loss arising in whole or in part, directly or indirectly, from any gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiespart.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent shall only have those duties as are expressly set forth in this Agreement, and no implied duties shall be read into this Agreement or the rest of the Escrow Agreement. The Escrow Agent nor any of its directors, officers or employees shall will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice or opinion of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice or opinion, the Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for obligated to take any losses resulting legal action or other action hereunder which might, in its judgment, involve any expense or liability unless it shall have been furnished with acceptable indemnification.
(b) In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Escrow Account, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 10 hereof or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the investments made parties to interplead and litigate in accordance with such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement. , and Exodus will pay the Escrow Agent (subject to reimbursement from CyberGuard pursuant to Section 9 hereof) all costs, expenses and reasonable attorney's fees expended or incurred by the Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Section 6 (such costs, fees and expenses will be treated as extraordinary fees and expenses for the purposes of Section 9 hereof).
(c) In no event shall the Escrow Agent be liable for any indirect, punitive, special or consequential damages, or any amount in excess of the value of the pledged collateral (as of the date of the action or omission giving rise to liability).
(bd) BRI and the Partnership The Escrow Agent shall jointly and severally indemnify in no instance be under any duty to give any property held by it hereunder any greater degree of care than it gives its own similar property. In no event shall the Escrow Agent forhave any obligation to advance or risk funds.
(e) The Escrow Agent shall not be deemed to have notice of any fact, claim or demand with respect hereto unless actually known by an officer charged with responsibility for administering this Agreement or unless in writing received by the Escrow Agent and hold it harmless against, any loss, liability making specific reference to this Agreement.
(f) All indemnifications contained in this Agreement shall survive the resignation or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part removal of the Escrow Agent, arising out and shall survive the termination of this Agreement.
(g) The Escrow Agent is not responsible for the recitals appearing in this Agreement. The recitals shall be deemed to be statements of the other parties to this Agreement.
(h) The Escrow Agent has no responsibility for the sufficiency of this Agreement for any purpose. Without limiting the foregoing, if any security interest is referred to herein, the Escrow Agent shall have no responsibility for, and makes no representation or warranty as to, the creation, attachment or perfection of any such security interest or the sufficiency of this Agreement therefor.
(i) Nothing in this Agreement shall obligate the Escrow Agent to qualify to do business or act in any jurisdiction in which it is not presently qualified to do business, or be deemed to impose upon the Escrow Agent the duties of a trustee. The duties of the Escrow Agent under this Agreement are strictly ministerial in nature.
(j) In no event shall the Escrow Agent have any liability for any failure or inability of any of the other parties to perform or observe its duties under the Agreement, or by reason of a breach of this Agreement by either of the other parties hereto. In no event shall the Escrow Agent be obligated to take any action against any of the other parties to compel performance hereunder.
(k) The Escrow Agent shall in no instance be obligated to commence, prosecute or defend any legal proceedings in connection with its carrying out of its duties hereunderherewith. The Escrow Agent shall be authorized and entitled, however, in any instance to commence, prosecute or defend any legal proceedings in connection herewith, including without limitation drawing on the Letter any proceeding it may deem necessary to resolve any matter or dispute, to obtain a necessary declaration of Creditrights, or to appoint a successor upon resignation (and after failure by Exodus to appoint a successor, as provided hereinafter).
(cl) BRI and In the Partnership jointly and severally hereby agree to assume event of any and all obligations imposed now ambiguity or hereafter by any applicable tax law with respect to the payment of Escrow Funds uncertainty under this Agreement, and to indemnify and hold or in any notice, instruction, or other communication received by the Escrow Agent harmless from and against any taxeshereunder, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent may, in any its discretion, refrain from taking action, and may retain the pledged collateral until and unless it receives written instruction signed by Exodus and CyberGuard which eliminates such payment uncertainty or other activities under this Agreement ambiguity.
(other than taxes on the net income of the m) The Escrow Agent attributable shall have no liability for the actions or omissions of any book-entry depository, transfer agent, nominee, correspondent, subagent or subcustodian. The Escrow Agent shall be permitted to use the payment services of fees hereunder). BRI any recognized securities depository or clearing agent, such as (without limitation) The Depository Trust Company and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxesFederal Reserve Bank book-entry securities system, assessments or other governmental chargesas applicable, certifications and governmental reporting in connection with its acting as any securities or investments held hereunder.
(n) The Escrow Agent under this Agreementshall not be responsible or liable for delays or failures in performance resulting from acts beyond its control. BRI and Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, laws or governmental regulations changes or superimposed after the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxesfact, assessments fire, communication line failures, power failures, computer viruses, earthquakes or other governmental chargesdisasters, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be unavailability of Federal Reserve Bank wire or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiestelex facilities.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither the 8.1 The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible or for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically specified as set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementherein. In all questions arising under this the Escrow Agreement, the Escrow Agent may rely on the advice of counsel, counsel (including in-house counsel), and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. .
8.2 The Buyer and the Indemnifying Stockholders hereby, jointly and severally, agree to indemnify the Escrow Agent shall not be liable for and its directors, officers and employees for, and hold it harmless against, any losses resulting from loss, liability or expense, including legal fees and other costs of preparing or defending any claim, incurred without gross negligence or willful misconduct on the investments made part of Escrow Agent, arising out of or in accordance connection with this Agreementits carrying out of its duties hereunder. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI . The Buyer, on the one hand, and the Partnership Indemnifying Stockholders, on the other hand, shall jointly and each be liable for one-half of such amount, with the Indemnifying Stockholders being severally indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' liable for a portion of such fees and expenses) incurred without gross negligence or willful misconduct expenses in accordance with the percentages set forth opposite each such Indemnifying Stockholder's respective name on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of CreditATTACHMENT A attached hereto.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 1 contract
Samples: Merger Agreement (Flexiinternational Software Inc/Ct)
Limitation of Escrow Agent’s Liability. (a) Neither Buyer and Seller agree jointly and severally to indemnify, defend, hold harmless, pay or reimburse the Escrow Agent nor any of and its affiliates and their respective successors, assigns, directors, officers agents and employees (the “Escrow Agent Indemnitees”) from and against any and all all losses, damages, claims, liabilities, penalties, judgments, settlements, litigation, investigations, costs or employees shall incur liability expenses (including, without limitation, the fees and expenses of outside counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively “Escrow Agent Losses”) arising out of or in connection with respect (i) the Escrow Agent’s performance of this Agreement, except to any action taken or suffered the extent that such Escrow Agent Losses are determined by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed a court of competent jurisdiction through a final order to have been caused by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or the gross negligence, willful misconduct, or bad faith of such Escrow Agent Indemnitee; providedand (ii) the Escrow Agent’s following any instructions or directions, that whether joint or singular, from Seller or Buyer received in accordance with respect to the custody of the Cash Collateral this Agreement. Buyer and Escrow Fund, Seller hereby grant the Escrow Agent shall use a lien on, right of set-off against and security interest in the standard care Escrow Fund for the payment of customarily used by custodians of funds. The any claim for indemnification, fees, expenses and amounts due to the Escrow Agent shall not be responsible for the validity or sufficiency an Escrow Agent Indemnitee. In furtherance of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) is expressly authorized and directed, but shall not be obligated obligated, to inquire as charge against and withdraw from the Escrow Fund for its own account or for the account of an Escrow Agent Indemnitee any amounts due to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on or to an Escrow Agent Indemnitee under Section 6 or Section 7. The obligations set forth in this Section 7 shall survive the advice resignation, replacement or removal of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice or the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment termination of such expense is made or provided for in a manner reasonably satisfactory to it. this Agreement.
(b) The Escrow Agent shall not be liable for any losses resulting action taken, suffered or omitted to be taken by it in good faith except to the extent that the Escrow Agent’s gross negligence, willful misconduct or bad faith are determined by a court of competent jurisdiction through a final order to have been the cause of any direct loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through its affiliates. In the event the Escrow Agent receives instructions, claims or demands from any Party which conflict with the provisions of this Agreement, or if the Escrow Agent receives conflicting instructions from the investments made Parties, the Escrow Agent shall be entitled either to (i) refrain from taking any action until it shall be given a joint written direction executed by Authorized Representatives of the Parties which eliminates such conflict or by a final court order, or (ii) file an action in accordance with interpleader. Anything in this Agreement. In Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for indirectspecial, incidental, punitive, special indirect or consequential damages.
loss or damage of any kind whatsoever (b) BRI and the Partnership shall jointly and severally indemnify including but not limited to lost profits), even if the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part has been advised of the Escrow Agent, arising out likelihood of such loss or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI damage and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income regardless of the Escrow Agent attributable to the payment form of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesaction.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only each of which are solely ministerial in nature, and shall have no duty under or obligation to determine compliance with, any other agreement or document notwithstanding their being referred to herein or attached hereto as an exhibit. The Escrow Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall not be deemed to be a fiduciary and shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction except for its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for may rely on and use the validity or sufficiency of this Agreement Stock Powers and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth liable in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementconnection therewith. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages whatsoever, even if the Escrow Agent has been advised of the likelihood of such damages.
(b) BRI and the Partnership shall jointly and severally Parent hereby agrees to indemnify the Escrow Agent Agent, its officers, directors, employees and agents for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder. This right of indemnification shall survive the termination of this Agreement, including without limitation drawing on and the Letter resignation of Creditthe Escrow Agent. The costs and expenses of enforcing this right of indemnification shall also be paid by Parent.
(c) BRI In the event that the Escrow Agent should at any time be (i) confronted with inconsistent or conflicting claims or demands by the other parties hereto or (ii) unsure of its duties hereunder, the Escrow Agent shall have the right to interplead the parties in any California court or any court of competent jurisdiction and request that such court determine the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law respective rights of the parties with respect to the payment of Escrow Funds under this AgreementAgreement and, and to indemnify and hold upon doing so, the Escrow Agent harmless shall be released from any obligations or liability to the other parties as a consequence of any such claims or demands. The Escrow Agent may consult counsel satisfactory to it, including in-house counsel, and against will be protected in respect of any taxesaction taken or omitted in reliance thereon.
(d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, additions for late payment, interest, penalties and other expenses, that may either directly or by or through its agents or attorneys. Nothing in this Agreement shall be assessed against deemed to impose upon the Escrow Agent any duty to qualify to do business in any such payment jurisdiction other than California. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or other activities under pass upon the validity, binding effect, execution or sufficiency of this Agreement (other than taxes on the net income or of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments any amendment or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiessupplement hereto.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither 4.1 The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document notwithstanding their being referred to herein or attached hereto as an exhibit. The Escrow Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction except for its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for may rely on and use the validity or sufficiency of this Agreement Stock Powers and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth liable in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementconnection therewith. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special consequential or consequential punitive damages.
(b) BRI and the Partnership shall jointly and 4.2 The parties hereby agree to severally indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on . This right of indemnification shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder)Agent. BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including The costs and expenses (including reasonable legal fees and expenses), interest and penaltiesof enforcing this right of indemnification shall also be paid by Purchaser.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document notwithstanding their being referred to herein. The Escrow Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction except for its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
(b) BRI Harbin SenRun, the SenRun Shareholders, the Company and the Partnership shall Patriot Shareholders jointly and severally agree to indemnify the Escrow Agent Agent, its officers, directors, employees and agents for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on . This right of indemnification shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder)Agent. BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including The costs and expenses (including reasonable legal fees of enforcing this right of indemnification shall be paid in equal proportion by Harbin SenRun and expenses), interest the SenRun Shareholders on the one hand and penaltiesthe Company and the Patriot Shareholders on the other hand.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document notwithstanding their being referred to herein or attached hereto as an exhibit. The Escrow Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction except for its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
(b) BRI and the Partnership shall The Pooling Shareholders, jointly and severally severally, hereby agree to indemnify the Escrow Agent Agent, its officers, directors, employees and agents for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on . This right of indemnification shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder)Agent. BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including The costs and expenses (including reasonable legal fees and expenses), interest and penaltiesof enforcing this right of indemnification shall also be paid by the Pooling Shareholders.
Appears in 1 contract
Samples: Escrow Agreement (E Comnetrix Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the . The Escrow Agent shall use have no duty to inquire into or investigate the standard care validity, accuracy or content of customarily used by custodians of fundsany document delivered to it. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice or opinion of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice advice, the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not have no duties or responsibilities other than those expressly set forth in this Agreement and the implied duty of good faith and fair dealing.
(b) In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Escrow Account, the Escrow Agent shall have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be liable appointed pursuant to Section 10 hereof; (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves; or (iii) give written notice to the other parties that it has received conflicting instructions from Asymetrix and a majority in interest of the Former Aimtech Stockholders and is refraining from taking action until it receives instructions consented to in writing by both Asymetrix and a majority in interest of the Former Aimtech Stockholders. In the event an interpleader suit as described in clause (ii) above is brought, the Escrow Agent shall thereby be fully released and discharged from all further obligations imposed upon it under this Agreement with respect to the matters that are the subject of such interpleader suit, and Asymetrix shall pay the Escrow Agent all costs, expenses and reasonable attorneys' fees expended or incurred by the Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Section 5 (such costs, fees and expenses shall be treated as extraordinary fees and expenses for any losses resulting the purposes of Section 9 hereof). Asymetrix shall be entitled to reimbursement from the investments made Former Aimtech Stockholders of any extraordinary fees and expenses of Escrow Agent in accordance the event Asymetrix prevails in such dispute pursuant to Section 9 hereof.
(c) Each party to this Agreement other than the Escrow Agent (each an "INDEMNIFYING PARTY" and together the "INDEMNIFYING PARTIES"), hereby jointly and severally covenants and agrees to reimburse, indemnify and hold harmless Escrow Agent, the Escrow Agent's officers, directors, employees, counsel and agents (severally and collectively, "ESCROW AGENT"), from and against any loss, damage, liability or loss suffered, incurred by, or asserted against Escrow Agent (including amounts paid in settlement of any action, suit, proceeding, or claim brought or threatened to be brought and including reasonable expenses of legal counsel) arising out of, in connection with or based upon, any act or omission by Escrow Agent (not involving gross negligence or willful misconduct on Escrow Agent's part) relating in any way to this AgreementAgreement or the Escrow Agent's services hereunder. In The aggregate liability of the Former Aimtech Stockholders to the Escrow Agent under this indemnity shall be limited to the Escrow Shares then in escrow hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for indirectspecial, punitive, special indirect or consequential damagesloss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. Any Indemnifying Party who reimburses or indemnifies the Escrow Agent pursuant to this Section 5(c) shall have a right to seek contribution from any and all other Indemnifying Parties according to their relative fault.
(bd) BRI and Each Indemnifying Party may participate at its own expense in the Partnership shall jointly and severally indemnify the defense of any claim or action that may be asserted against Escrow Agent forAgent, and hold if the Indemnifying Parties so elect, the Indemnifying Parties may assume the defense of such claim or action; provided, however, that if there exists a -------- ------- conflict of interest that would make it harmless againstinappropriate, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on in the part sole discretion of the Escrow Agent, arising out for the same counsel to represent both Escrow Agent and the Indemnifying Parties, Escrow Agent's retention of separate counsel shall be reimbursable as hereinabove provided. Escrow Agent's right to indemnification hereunder shall survive Escrow Agent's resignation or in connection with its carrying out removal as Escrow Agent and shall survive the termination of its duties hereunder, including without limitation drawing on the Letter this Agreement by lapse of Credittime or otherwise.
(ce) BRI The Escrow Agent shall notify each Indemnifying Party by letter, or by telephone or telecopy confirmed by letter, of any receipt by Escrow Agent of a written assertion of a claim against Escrow Agent, or any action commenced against Escrow Agent, for which indemnification is required under Section 5(c), within ten (10) days after Escrow Agent's receipt of written notice of such claim. The Indemnifying Parties will be relieved of their indemnification obligations under this Section 5 if Escrow Agent fails to timely give such notice and such failure adversely affects the Indemnifying Parties' ability to defend such claim. However, Escrow Agent's failure to so notify each Indemnifying Party shall not operate in any manner whatsoever to relieve an Indemnifying Party from any liability that it may have otherwise than on account of this Section 5.
(f) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder either directly or by or through its agents or attorneys and shall be entitled to consult with its counsel, including in-house counsel, as to any questions or matters arising hereunder and the Partnership jointly reasonable, good faith written opinion of such counsel shall be full and severally hereby agree complete authorization and protection to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in respect of any act or omission by Escrow Agent undertaken in good faith and in accordance with the opinion of such payment counsel. The Escrow Agent shall have no liability for the conduct of any outside attorneys, accountants or other activities under similar professionals it retains. Nothing in this Agreement (shall be deemed to impose upon Escrow Agent any duty to qualify to do business or to act as a fiduciary or otherwise in any jurisdiction other than taxes on the net income State of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesWashington.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Asymetrix Learning Systems Inc)
Limitation of Escrow Agent’s Liability. Responsibilities of Escrow ------------------------------------------------------------------ Agent. Escrow Agent's responsibility and liability under this Agreement shall ----- be limited as follows:
(i) Escrow Agent does not represent, warrant or guaranty to the holders of the Securities from time to time the performance of the Company; (ii) Escrow Agent shall have no responsibility to the Company or the holders of the Securities or Trustee from time to time as a consequence of performance or non-performance by Escrow Agent hereunder, except for any bad faith, gross negligence or willful misconduct of Escrow Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and conduct; and (iv) Escrow Agent is not obligated to supervise, inspect or inform the Company or any third party of any matter referred to above. In no event shall Escrow Agent be liable (a) Neither for acting in accordance with or relying upon any instruction, notice, demand, certificate or document from the Company or any entity acting on behalf of the Company, (b) for any consequential, punitive or special damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent nor any has been advised of the likelihood of such loss or damage regardless of the form of action, (c) for the acts or omissions of its directorsnominees, officers correspondents, designees, subagents or employees subcustodians, (d) for an amount in excess of the value of the Escrow Account or (e) for the validity, sufficiency or priority of this Agreement or any Collateral or other security furnished hereby. No implied covenants or obligations shall incur be inferred from this Agreement against Escrow Agent, nor shall Escrow Agent be bound by the provisions of any agreement beyond the specific terms hereof. Specifically and without limiting the foregoing, Escrow Agent shall in no event have any liability in connection with respect its investment, reinvestment or liquidation, in good faith and in accordance with the terms hereof, of any Escrow Funds held by it hereunder, including without limitation any liability for any delay not resulting from gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any action taken such delay. Escrow Agent shall be entitled to rely upon any judicial or suffered administrative order or judgment, upon any opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by it the Company or Trustee in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. Escrow Agent may act in reliance upon any notice, direction, instruction, consent, statement instrument comporting with the provisions of this Agreement or other documents signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorizedauthorized to do so. At any time Escrow Agent may request in writing an instruction in writing from the Company (other than any disbursement pursuant to Section 6(b)(iii)), nor for other action or inaction except and may at its own willful misconduct or gross negligenceoption include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided, however, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of state in such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered request -------- ------- that it believes in good faith by the Escrow Agent based on that such advice the proposed course of action is consistent with an identified provision of this Agreement. Escrow Agent shall not be liable to anyone. The the Company for acting without the Company's consent in accordance with such a proposal on or after the date specified therein if (i) the specified date is at least four Business Days after the Company receives Escrow Agent's request for instructions and its proposed course of action, and (ii) prior to so acting, Escrow Agent shall has not be required to take any action hereunder involving any received the written instructions requested from the Company. At the expense unless of the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Company, Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to clause (ii) of the first paragraph of this Section 4) shall not be liable for any losses resulting from the investments made action taken or omitted in accordance with this Agreementsuch advice. Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In no the event shall of any ambiguity in the provisions of this Agreement with respect to any Escrow Funds property deposited hereunder, Escrow Agent shall be entitled to refuse to comply with any and all claims, demands or instructions with respect to such Escrow Funds and Escrow Agent shall not be or become liable for indirectits failure or refusal to comply with conflicting claims, punitive, special demands or consequential damages.
(b) BRI and the Partnership shall jointly and severally indemnify the instructions. Escrow Agent forshall be entitled to refuse to act until either any conflicting or adverse claims or demands shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting claimants as evidenced in a writing, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the satisfactory to Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree Escrow Agent shall have received security or an indemnity satisfactory to assume any and all obligations imposed now or hereafter by any applicable tax law with respect Escrow Agent sufficient to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxesand all loss, additions for late payment, interest, penalties and other expenses, that may be assessed against the liability or expense which Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income may incur by reason of the its acting. Escrow Agent attributable may in addition elect in its sole option to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and commence an interpleader action or seek other taxes, assessments judicial relief or other governmental charges, certifications and governmental reporting in connection with its acting orders as Escrow Agent under this Agreementmay deem necessary. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including The costs and expenses (including reasonable legal attorney's fees and expenses) incurred in connection with such proceedings shall be paid by, and shall be deemed an obligation of the Company. No provision of this Agreement shall require Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. 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 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, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility), interest and penalties.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither 7.1 The Escrow Agent undertakes to perform such duties as are specifically set forth in this Escrow Agreement only and shall have no duty under any other agreement or document, and no implied covenants or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementmisconduct. In all questions arising under this Escrow Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
(b) BRI 7.2 GraphOn and the Partnership shall Shareholders' Representative jointly and severally hereby agree to indemnify the Escrow Agent and its officers, directors, employees and agents for, and hold it and them harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its the Escrow Agent carrying out of its duties hereunder. This right of indemnification, including without limitation drawing on compensation and reimbursement shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of this Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 1 contract
Samples: Merger Agreement (Graphon Corp/De)
Limitation of Escrow Agent’s Liability. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall incur any liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not have no duty to inquire into or investigate the validity, accuracy or content of any document delivered to it nor shall the Escrow Agent be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be responsible for any of the agreements referred to herein, including the Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Agreement.
(b) In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Company Stockholders' Indemnity Shares, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 8 hereof, or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and Parent will pay the Escrow Agent all costs, expenses and reasonable attorneys' fees expended or incurred by the Escrow Agent pursuant to the exercise of the Escrow Agent's rights under this Section 5(b) (such costs, fees and expenses will be treated as extraordinary fees and expenses for the purposes of Section 4 hereof).
(c) Parent and the Company Stockholders, jointly and severally, hereby agree to indemnify the Escrow Agent for, and hold it harmless against, any loss, damage, liability or expense incurred without gross negligence or willful misconduct on the part of Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder including, but not limited to reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim or liability in the premises. As among themselves, each of Parent and the Company Stockholders as a group shall be liable for any losses resulting one-half (1/2) of such amounts and Parent shall be entitled to reimbursement from the investments made Company Stockholders' Indemnity Shares in accordance with this AgreementSection 2(d)(iii)(C) above of the Company Stockholders share of any such loss, liability or expense. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages. Any indemnification of the Escrow Agent by the Company Stockholders shall be limited to the Escrow Account.
(bd) BRI Parent and the Partnership shall Company Stockholders jointly and severally indemnify the Escrow Agent forseverally, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment release of Escrow Funds any Company Stockholders' Indemnity Shares under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment release or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder)Agreement. BRI Parent and the Partnership Company Stockholders undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI Parent and the Partnership Company Stockholders, jointly and severally hereby severally, agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 1 contract
Samples: Stockholders' Escrow Agreement (Medical Device Alliance Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the a. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered omitted to be taken by it in reliance upon any notice, direction, instruction, (including without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction) consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, . In no event shall the Escrow Agent shall use be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the standard care Escrow Agent has been informed of customarily used by custodians the likelihood of fundssuch loss or damage and regardless of the form of action. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this the Escrow Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI b. The Buyer and the Partnership shall Indemnifying Stockholders hereby, jointly and severally severally, agree to indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder. The Buyer, on the one hand, and the Indemnifying Stockholders, on the other hand, shall each be liable for one-half of such amounts.
c. Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein. (including without limitation drawing the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Escrow Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the Letter part of Credit.
the Escrow Agent, (ciii) BRI and the Partnership jointly and severally hereby agree shall not be obligated to assume take any and all obligations imposed now legal or hereafter other action hereunder which might in its judgment involve or The Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in than any such payment book-entry depository, Securities intermediary or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect subescrow agent has to the Escrow Agent's responsibility for withholding and other taxes, assessments except to the extent that such action or omission of any book entry depository, securities intermediary or other governmental chargessubescrow agent was caused by the Escrow Agent's own gross negligence, certifications and governmental reporting bad faith or wilful misconduct in connection with its acting as Escrow Agent under breach of this Agreement. BRI The use of any such depository, intermediary or other subescrow agent shall be subject to the prior written approval of Buyer and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to Indemnification Representatives which the Escrow Agent may shall not be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesunreasonably withheld.
Appears in 1 contract
Samples: Escrow Agreement (Eclipsys Corp)
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent. The Escrow Agent nor shall not be liable to anyone for any action taken or omitted to be taken by it hereunder except in the case of its directors, officers the Escrow Agent's gross negligence or employees willful misconduct or breach of the terms of this Agreement. The Escrow Agent shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or in a separate written instruction), consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible or for any of the agreements referred to hereinor described herein (including, including the Merger Agreement and the Partnership Merger Agreementwithout limitation, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby. In all questions arising under this the Escrow Agreement, the Escrow Agent may rely on the advice of counsel, counsel (including in-house counsel), and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI The Buyer, McLaren and the Partnership shall Company Shareholders hereby, jointly and severally severally, agree to indemnify the Escrow Agent (and its officers, directors and employees) for, and hold it (and its officers, directors and employees) harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunderhereunder including, including without limitation drawing limitation, outside counsel fees. The Buyer, on the Letter of Credit.
(c) BRI one hand, and McLaren and the Partnership -6- 112 Company Shareholders, on the other hand, shall each be liable for one-half of such amounts; PROVIDED, HOWEVER, that the Escrow Fund shall be the sole source of recovery for amounts payable by McLaren and the Company Shareholders under this Section 8(b). In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages or loss (including, but not limited to, lost profits) whatsoever, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action. The Buyer, McLaren and the Company Shareholders hereby, jointly and severally hereby severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of the Escrow Funds Account under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, assessments, additions for late payment, governmental charges, including, without limitation, withholdings or deductions or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, including costs and expenses (including reasonable legal fees and expenses), interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereundereach, a "Liability"). BRI The Buyer, McLaren and the Partnership undertake to Shareholders' Representative shall instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and ; PROVIDED, HOWEVER, that the Partnership jointly and severally hereby agree indemnity in the foregoing sentence will not apply to indemnify and hold the extent that a Liability results from the Escrow Agent's gross negligence or willful misconduct, which shall include failure to follow such written instructions. The Escrow Agent harmless from any shall have no more or less responsibility or liability on account of taxes, assessments any action or other governmental charges, including without limitation the withholding omission of any book-entry depository or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which subescrow agent employed by the Escrow Agent may be than any such book entry depository or become subject in connection with subescrow agent has to the Escrow Agent, except to the extent that such action or which arises out omission of this Agreementany book entry depository or subescrow agent was caused by the Escrow Agent's own gross negligence, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesbad faith or willful misconduct.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rsa Security Inc/De/)
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees undertakes to perform only such duties as are expressly set forth herein and no duties shall incur liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of fundsimplied. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement have no liability under and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated no duty to inquire as to the accuracy provisions of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger agreement other than this Escrow Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from action taken or omitted by it in good faith except to the investments made extent that a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to the Purchaser, the Stockholder Representative or any of the Entitled Holders. Escrow Agent’s sole responsibility shall be for the safekeeping and disbursement of the Escrow Funds in accordance with the terms of this Escrow Agreement. Escrow Agent shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. Escrow Agent may rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall believe to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event shall the Escrow Agent be liable for incidental, indirect, punitivespecial, special consequential or consequential damagespunitive damages (including, but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. Escrow Agent shall not be obligated to take any legal action or commence any proceeding in connection with the Escrow Funds, any account in which Escrow Funds are deposited, this Escrow Agreement or the Purchase Agreement, or to appear in, prosecute or defend any such legal action or proceeding. Escrow Agent may consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving any party hereto, and shall incur no liability and shall be fully indemnified from any liability whatsoever in acting in accordance with the opinion or instruction of such counsel. Purchaser and Stockholder Representative, jointly and severally, shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel.
(b) BRI From and at all times after the Partnership shall date of this Escrow Agreement, Purchaser and Stockholder Representative, jointly and severally severally, shall, to the fullest extent permitted by law, indemnify the and hold harmless Escrow Agent forand each director, officer, employee, attorney, agent and hold it harmless againstaffiliate of Escrow Agent (collectively, the “Indemnified Parties”) against any lossand all actions, liability claims (whether or expense not valid), losses, damages, liabilities, costs and expenses of any kind or nature whatsoever (including without limitation reasonable attorneys' fees ’ fees, costs and expenses) incurred by or asserted against any of the Indemnified Parties from and after the date hereof, whether direct, indirect or consequential, as a result of or arising from or in any way relating to any claim, demand, suit, action or proceeding (including any inquiry or investigation) by any person, including without limitation Purchaser and Stockholder Representative, whether threatened or initiated, asserting a claim for any legal or equitable remedy against any person under any statute or regulation, including, but not limited to, any federal or state securities laws, or under any common law or equitable cause or otherwise, arising from or in connection with the negotiation, preparation, execution, performance or failure of performance of this Escrow Agreement or any transactions contemplated herein, whether or not any such Indemnified Party is a party to any such action, proceeding, suit or the target of any such inquiry or investigation; provided, however, that no Indemnified Party shall have the right to be indemnified hereunder for any liability finally determined by a court of competent jurisdiction, subject to no further appeal, to have resulted solely from the gross negligence or willful misconduct on the part of the Escrow Agent, arising out such Indemnified Party. The obligations of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI Purchaser and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds Stockholder Representative under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against Section 6 shall survive any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out termination of this Escrow Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Biomarin Pharmaceutical Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers shall have no liability or employees shall incur liability obligation with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor the Escrow Shares except for other action or inaction except its own the Escrow Agent’s willful misconduct or gross negligence; provided, that with respect to . The Escrow Agent’s sole responsibility shall be for the custody safekeeping and distribution of the Cash Collateral and Escrow Fund, Shares in accordance with the Escrow Agent shall use the standard care terms of customarily used by custodians of fundsthis Agreement. The Escrow Agent shall not be responsible for the validity have no implied duties or sufficiency of this Agreement obligations and shall not be responsible for charged with knowledge or notice of any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are fact or circumstance not specifically set forth in this Escrow Agreementherein. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the The Escrow Agent may rely on upon any instrument, not only as to its due execution, validity and effectiveness, but also as to the advice truth and accuracy of counselany information contained therein, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice which the Escrow Agent shall not in good faith believe to be liable genuine, to anyone. The Escrow Agent shall not be required have been signed or presented by the person or parties purporting to take any action hereunder involving any expense unless sign the payment same and conform to the provisions of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for incidental, indirect, punitivespecial, special and consequential or consequential punitive damages. The Escrow Agent shall not be obligated to take any legal action or commence any proceeding in connection with the Escrow Shares, any account in which the funds are deposited, this Agreement or the Lock-Up Agreement, or to appear in, prosecute or defend any such legal action or proceeding. The Escrow Agent may consult legal counsel selected by it in any event of any dispute or question as to construction of any of the provisions hereof or of any other agreement or its duties hereunder, or relating to any dispute involving any party hereto, and shall incur no liability and shall be fully indemnified from any liability whatsoever in acting in accordance with the opinion or instructions of such counsel. The Company and the Restricted Holders shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel as stated in the prior sentence, except in the event of gross negligence or willful misconduct by the Escrow Agent to the extent if found in a final judgment by a court of competent jurisdiction.
(b) BRI and The Escrow Agent is hereby authorized, in its sole discretion, to comply with orders issued or process entered by any court with respect to the Partnership shall jointly and severally indemnify Escrow Shares, without determination by the Escrow Agent forof such court’s jurisdiction in the matter. If any portion of the Escrow Shares is at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in any case any order judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any such event, the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which it is advised by legal counsel selected by it to be binding upon it, without the need for appeal or other action; and if the Escrow Agent complies with any such order, writ, judgment or decree, it shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(c) From and at all times after the date of this Agreement, the Company and the Restricted Holders, jointly and severally, shall, to the fullest extent permitted by law and to the extent provided herein, indemnify and hold it harmless againstthe Escrow Agent and each partner, director, officer, employee, attorney, agent and affiliate of the Escrow Agent (collectively, the “Indemnified Parties”) against any lossand all actions, liability claims (whether or expense not valid), losses, damages, liabilities, costs and expenses of any kind or nature whatsoever (including without limitation reasonable attorneys' fees attorney’s fees, costs and expenses) incurred by or asserted against any of the Indemnified Parties from and after the date hereof, whether direct, indirect or consequential, as a result of or arising from or in any way relating to any claim, demand, suit, action, or proceeding (including any inquiry or investigation) by any person, including without limitation the parties to this Agreement, whether threatened or initiated, asserting a claim for any legal or equitable remedy against any person under any statute or regulation, including, but not limited to, any federal or state securities laws, or under any common law or equitable cause or otherwise, arising from or in connection with the negotiation, preparation, execution, performance or failure of performance of this Agreement or any transaction contemplated herein, whether or not any such Indemnified Party is a party to any such action or proceeding, suit or the target of any such inquiry or investigation; provided, however, that no Indemnified Party shall have the right to be indemnified hereunder for liability finally determined by a court of competent jurisdiction, subject to no further appeal, to have resulted from the gross negligence or willful misconduct on of such Indemnified Party. The obligations of the part parties under this section shall survive any termination of this Agreement, and resignation or removal of Escrow Agent shall be independent of any obligation of Escrow Agent.
(d) If at any time, there shall exist any dispute with respect to holding or disposition of any portion of the Escrow Shares or any other obligations of the Escrow Agent hereunder, or if at any time the Escrow Agent is unable to determine, to the Escrow Agent’s sole satisfaction, the proper disposition of any portion of the Escrow Shares or the Escrow Agent’s proper actions with respect to its obligations hereunder, or if the Company has not within thirty (30) days of the furnishing by the Escrow Agent of a notice of resignation pursuant to the notice provisions hereof, appointed a successor Escrow Agent to act hereunder, then the Escrow Agent may, in its sole discretion, take either or both of the following actions:
(i) suspend the performance of any of its obligations (including without limitation any disbursement obligations) under this Agreement until such dispute or uncertainty shall be resolved to the sole satisfaction of the Escrow Agent or until a successor Escrow Agent shall be appointed (as the case may be); provided, however, the Escrow Agent shall continue to hold the Escrow Shares in accordance with the terms hereof; or
(ii) petition (by means of an interpleader action or any other appropriate method) any court of competent jurisdiction in any venue convenient to the Escrow Agent, arising out for instructions with respect to such dispute or uncertainty, and to the extent required by law, pay into such court, for holding and disposition in accordance with the instructions of such court, all securities and all funds held by it in the Escrow Account, after deduction and payment to the Escrow Agent of all fees and expenses (including court costs and attorneys’ fees) payable to, incurred by, or expected to be incurred by Escrow Agent in connection with its carrying out performance of its duties and the exercise of its rights hereunder, including without limitation drawing on the Letter of Credit.
(ce) BRI The Escrow Agent may resign from the performance of its duties hereunder at any time by giving thirty (30) days’ prior written notice to the Company or may be removed, with or without cause, by the Company by furnishing a written direction to the Escrow Agent, at any time by the giving of ten (10) days’ prior written notice to the Escrow Agent as provided herein below. Upon any such notice of resignation or removal, the Company shall appoint a successor Escrow Agent hereunder, which shall be a commercial bank, trust company or other financial institution with a combined capital and surplus in excess of $10,000,000.00. Upon the acceptance in writing of any appointment of an escrow agent hereunder by a successor Escrow Agent, such successor Escrow Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Escrow Agent, and the Partnership jointly retiring Escrow Agent shall be discharged from its duties and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and but shall not be discharged from any liability for actions taken as escrow agent hereunder prior to indemnify and hold such succession. After any retiring Escrow Agent’s resignation or removal, the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under provisions of this Agreement (other than taxes on the net income of the Escrow Agent attributable shall inure to the payment of fees hereunder). BRI and the Partnership undertake its benefit as to instruct the Escrow Agent in writing with respect any actions taken or omitted to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent be taken by it while it was escrow agent under this Agreement. BRI and the Partnership jointly and severally hereby agree The retiring Escrow Agent shall transmit all records pertaining to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, Shares and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which shall deliver all securities and all funds held by it in the Escrow Account to the successor Escrow Agent, after making copies of such records as the retiring Escrow Agent may be or become subject in connection with or which arises out deems advisable and after deduction and payment to the retiring Escrow Agent of this Agreement, including costs all fees and expenses (including reasonable legal fees court costs and expenses)attorneys’ fees) payable to, interest incurred by, or expected to be incurred by the retiring Escrow Agent in connection with the performance of its duties and penaltiesthe exercise of its rights hereunder.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither 4.1 The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document notwithstanding their being referred to herein or attached hereto as an exhibit. The Escrow Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction except for its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for may rely on and use the validity or sufficiency of this Agreement Stock Powers and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth liable in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementconnection therewith. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special consequential or consequential punitive damages.
(b) BRI and the Partnership shall jointly and 4.2 The parties hereby agree to severally indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on . This right of indemnification shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the resignation of the Escrow Agent harmless from Agent. The costs and against any taxes, additions for late payment, interest, penalties and other expenses, that may expenses of enforcing this right of indemnification shall also be assessed against paid by the Escrow Agent in any such payment or other activities under this Agreement parties hereto (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 1 contract
Samples: Share Exchange Agreement (Vyyo Inc)
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall incur no liability with in respect to or any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents paper or document believed by it to be genuine and duly authorizedauthorized or for anything else, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent does not make any representations whatsoever regarding the Escrow Deposit. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is shall be made or provided for in a manner reasonably satisfactory to it. Other than a default situation discussed in paragraph 8. hereof, the Escrow Agent shall release the Escrow Property to any party as required by the Borrower or the Lender upon receipt of written instructions signed jointly by both the Borrower and the Lender. In the event any portion of the escrowed property is in the possession of a depository under the direction of the Escrow Agent, and said written instructions are received, the Escrow Agent shall make a written request to Sun Trust, or its equivalent, at their office in Blue Xxxx, Pennsylvania to release said escrowed property to him. The Escrow Agent may at his sole discretion rely on said written instructions and proceed to release the Escrow Property without incurring any liability whatsoever to the Borrower or to the Lender. The Escrow Agent shall not incur no liability whatsoever in the event that Sun Trust, or its equivalent, refuses to release any portion of the Escrowed Property to him and shall be liable for any losses resulting from under no burden to further pursue same after making the investments made in accordance with this Agreementwritten request. In no event This Escrow Agreement shall immediately terminate and the Escrow Agent shall be liable for indirectreleased as Escrow Agent, punitive, special or consequential damages.
(b) BRI and the Partnership shall jointly and severally indemnify upon the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on requesting the part release of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on Property pursuant to the Letter of Credit.
(c) BRI written instructions from the Borrower and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesLender.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither 4.1. The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own gross negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementmisconduct. In all questions arising under this Agreement and/or its interpretation hereof in conjunction with the Purchase Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
4.2. Buyer and Representative (bsolely on behalf of the Seller Parties and in its capacity as the Seller Parties, not in its individual capacities) BRI and the Partnership shall hereby agree to jointly and severally indemnify the Escrow Agent and its officers, directors, employees and agents for, and hold it and them harmless against, any loss, liability or expense (including reasonable attorneys' fees and expensesattorney fees) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its the Escrow Agent’s carrying out of its duties hereunder, including without limitation drawing on . This right of indemnification shall survive the Letter termination of Credit.
(c) BRI this Agreement and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to Agent. The indemnification by Representative shall be paid solely from the payment of fees hereunder). BRI assets (i.e., cash and the Partnership undertake to instruct stock) contained in the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesAccounts.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither 4.1 The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document notwithstanding their being referred to herein or attached hereto as an exhibit. The Escrow Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction except for its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for may rely on and use the validity or sufficiency of this Agreement Stock Powers and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth liable in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementconnection therewith. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special consequential or consequential punitive damages.
(b) BRI and the Partnership shall jointly and 4.2 The parties hereby agree to severally indemnify the Escrow Agent for, and hold it harmless against, any loss, loss liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on . This right of indemnification shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder)Agent. BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including The reasonable costs and expenses (including reasonable legal fees and expenses), interest and penaltiesof enforcing this right of indemnification shall also be paid by the parties.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, authorized in accordance with the terms hereof nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice advice, the Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments If conflicting demands are made in accordance with this Agreement. In no event shall or conflicting notices are served upon the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI and the Partnership shall jointly and severally indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxesFund, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxeswill have the absolute right, assessments or other governmental charges, including without limitation at the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authoritiesEscrow Agent’s election, to which do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 13 hereof or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. If such interpleader suit is brought, the Escrow Agent may will thereby be or become subject in connection with or which arises out of this fully released and discharged from all further obligations imposed upon it under the Agreement, including costs and ECPN will pay the Escrow Agent (and the Shareholders’ Representative pursuant to the extent required in Section 12 hereof) all costs, expenses and reasonable attorneys’ fees expended or incurred by the Escrow Agent pursuant to the exercise of Escrow Agent’s rights under this Section 9 (such costs, fees and expenses (including reasonable legal will be treated as extraordinary fees and expensesexpenses for the purposes of Section 12 hereof), interest and penalties.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither the The Escrow Agent nor any of its directors, officers or employees shall will be indemnified and will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this the Escrow Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI and In the Partnership shall jointly and severally indemnify event conflicting demands are made or conflicting notices served upon the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxesAccount, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) withhold and stop all further proceedings pursuant to, and performance under, this Escrow Agreement; or (ii) file a suit in interpleader and obtain an order from any liability on account court of taxescompetent jurisdiction an order requiring the parties to interplead and litigate in such court conflicting demands or claims. In the event such interpleader suit is brought, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may will thereby be fully released and each discharged from all further obligations imposed upon it under this Escrow Agreement with respect to the Claim(s) that are the subject of such interpleader suit, and CCT and the UniCAD Common Stockholders will each pay (subject to reimbursement pursuant to Section 7 hereof) one-half of all costs, expenses and reasonable attorney's fees expended or become subject incurred by the Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Section 6, the amount thereof to be fixed and a judgment therefor to be rendered by the court in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiessuch suit.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cooper & Chyan Technology Inc)
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent shall only have those duties as are expressly set forth in this Agreement, and no implied duties shall be read into this Agreement or the rest of the Escrow Agreement. The Escrow Agent nor any of its directors, officers or employees shall will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice or opinion of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice or opinion, the Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for obligated to take any losses resulting legal action or other action hereunder which might, in its judgment, involve any expense or liability unless it shall have been furnished with acceptable indemnification.
(b) In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Escrow Account, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following:
(i) resign so a successor can be appointed pursuant to Section 10 hereof or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the investments made parties to interplead and litigate in accordance with such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement. , and DST and CyberGuard will each pay the Escrow Agent half its costs, expenses and reasonable attorney's fees expended or incurred by the Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Section 6.
(c) In no event shall the Escrow Agent be liable for any indirect, punitive, special or consequential damages, or any amount in excess of the value of the pledged collateral (as of the date of the action or omission giving rise to liability).
(bd) BRI and the Partnership The Escrow Agent shall jointly and severally indemnify in no instance be under any duty to give any property held by it hereunder any greater degree of care than it gives its own similar property. In no event shall the Escrow Agent forhave any obligation to advance or risk funds.
(e) The Escrow Agent shall not be deemed to have notice of any fact, claim or demand with respect hereto unless actually known by an officer charged with responsibility for administering this Agreement or unless in writing received by the Escrow Agent and hold it harmless against, any loss, liability making specific reference to this Agreement.
(f) All indemnifications in favor of Escrow Agent contained in this Agreement shall survive the resignation or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part removal of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on and shall survive the Letter of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out termination of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither 5.1. The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own gross negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementmisconduct. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
(b) BRI 5.2. Purchaser, the Company and the Partnership shall Selling Parties (collectively referred to as the "INDEMNITORS") jointly and severally agree to indemnify the Escrow Agent forand its officers, directors, employees, agents and shareholders (collectively referred to as the "INDEMNITEES") against, and hold it them harmless againstof and from, any and all loss, liability liability, cost, damage and expense, including without limitation, reasonable counsel fees, which the Indemnitees may suffer or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence incur by reason of any action, claim or willful misconduct on proceeding brought against the part of the Escrow Agent, Indemnitees arising out of or relating in connection with its carrying out any way to this Agreement or any transaction to which this Agreement relates, unless such action, claim or proceeding is the result of its duties hereunder, including without limitation drawing on the Letter willful misconduct or gross negligence of Creditthe Indemnitees.
(c) BRI 5.3. If the indemnification provided for in Section 5.2 is applicable, but for any reason is held to be unavailable, the Indemnitors shall contribute such amounts as are just and equitable to pay, or to reimburse the Partnership jointly and severally hereby agree to assume Indemnitees for, the aggregate amount of any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreementlosses, liabilities, costs, damages and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against including reasonable counsel fees, actually incurred by the Escrow Agent in any such payment Indemnitees as a result of or other activities under this Agreement (other than taxes on the net income of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the samewith, and any liability for failure to obtain proper certifications amount paid in settlement of, any action, claim or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises proceeding arising out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiesor relating in any way to any actions or omissions of the Indemnitors.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent shall only have those duties as are expressly set forth in this Agreement, and no implied duties shall be read into this Agreement or the rest of the Escrow Agreement. The Escrow Agent nor any of its directors, officers or employees shall will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction inaction, except its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall will not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice or opinion of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice or opinion, the Escrow Agent shall will not be liable to anyone. The Escrow Agent shall will not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for obligated to take any losses resulting legal action or other action hereunder which might, in its judgment, involve any expense or liability unless it shall have been furnished with acceptable indemnification.
(b) In the event conflicting demands are made or conflicting notices are served upon the Escrow Agent with respect to the Escrow Account, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: (i) resign so a successor can be appointed pursuant to Section 10 hereof or (ii) file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under this Agreement, and VERITAS will pay the Escrow Agent (subject to reimbursement from the investments made in accordance with Shareholders pursuant to Section 9 hereof) all costs, expenses and reasonable attorney's fees expended or incurred by the Escrow Agent pursuant to the exercise of Escrow Agent's rights under this Agreement. Section 6 (such costs, fees and expenses will be treated as extraordinary fees and expenses for the purposes of Section 9 hereof).
(c) In no event shall the Escrow Agent be liable for any indirect, punitive, special or consequential damages, or any amount in excess of the value of the pledged collateral (as of the date of the action or omission giving rise to liability).
(bd) BRI and the Partnership The Escrow Agent shall jointly and severally indemnify in no instance be under any duty to give any property held by it hereunder any greater degree of care than it gives its own similar property. The Escrow Agent shall not be required to invest any funds that may be held hereunder. In no event shall the Escrow Agent forhave any obligation to advance or risk funds.
(e) The Escrow Agent shall not be deemed to have notice of any fact, claim or demand with respect hereto unless actually known by an officer charged with responsibility for administering this Agreement or unless in writing received by the Escrow Agent and hold it harmless against, any loss, liability making specific reference to this Agreement.
(f) All indemnifications contained in this Agreement shall survive the resignation or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part removal of the Escrow Agent, arising out and shall survive the termination of this Agreement.
(g) The Escrow Agent is not responsible for the recitals appearing in this Agreement. The recitals shall be deemed to be statements of the other parties to this Agreement.
(h) The Escrow Agent has no responsibility for the sufficiency of this Agreement for any purpose. Without limiting the foregoing, if any security interest is referred to herein, the Escrow Agent shall have no responsibility for, and makes no representation or warranty as to, the creation, attachment or perfection of any such security interest or the sufficiency of this Agreement therefor.
(i) Nothing in this Agreement shall obligate the Escrow Agent to qualify to do business or act in any jurisdiction in which it is not presently qualified to do business, or be deemed to impose upon the Escrow Agent the duties of a trustee. The duties of the Escrow Agent under this Agreement are strictly ministerial in nature.
(j) In no event shall the Escrow Agent have any liability for any failure or inability of any of the other parties to perform or observe its duties under the Agreement, or by reason of a breach of this Agreement by either of the other parties hereto. In no event shall the Escrow Agent be obligated to take any action against any of the other parties to compel performance hereunder.
(k) The Escrow Agent shall in no instance be obligated to commence, prosecute or defend any legal proceedings in connection with its carrying out of its duties hereunderherewith. The Escrow Agent shall be authorized and entitled, however, in any instance to commence, prosecute or defend any legal proceedings in connection herewith, including without limitation drawing on the Letter any proceeding it may deem necessary to resolve any matter or dispute, to obtain a necessary declaration of Creditrights, or to appoint a successor upon resignation (and after failure by VERITAS to appoint a successor, as provided hereinafter).
(cl) BRI and In the Partnership jointly and severally hereby agree to assume event of any and all obligations imposed now ambiguity or hereafter by any applicable tax law with respect to the payment of Escrow Funds uncertainty under this Agreement, and to indemnify and hold or in any notice, instruction, or other communication received by the Escrow Agent harmless from and against any taxeshereunder, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent may, in any its discretion, refrain from taking action, and may retain the pledged collateral until and unless it receives written instruction signed by VERITAS and the Representative which eliminates such payment uncertainty or other activities under this Agreement ambiguity.
(other than taxes on the net income of the m) The Escrow Agent attributable shall have no liability for the actions or omissions of any book-entry depository, transfer agent, nominee, correspondent, subagent or subcustodian. The Escrow Agent shall be permitted to use the payment services of fees hereunder). BRI any recognized securities depository or clearing agent, such as (without limitation) The Depository Trust Company and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxesFederal Reserve Bank book-entry securities system, assessments or other governmental chargesas applicable, certifications and governmental reporting in connection with its acting as any securities or investments held hereunder.
(n) The Escrow Agent under this Agreementshall not be responsible or liable for delays or failures in performance resulting from acts beyond its control. BRI and Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, laws or governmental regulations changes or superimposed after the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxesfact, assessments fire, communication line failures, power failures, computer viruses, earthquakes or other governmental chargesdisasters, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be unavailability of Federal Reserve Bank wire or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltiestelex facilities.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no liabilities or obligations with respect to the Escrow Fund except for the Escrow Agent’s willful misconduct or gross negligence. The Escrow Agent nor shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein or in any notices given to it in accordance with the notice provisions of its directors, officers this Agreement. The Escrow Agent shall not be required to take notice of the Merger Agreement and shall have no duty or employees responsibility to take any action pursuant to the terms thereof. The Escrow Agent shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of fundsmisconduct. The Escrow Agent shall not be responsible for may consult legal counsel selected by it in the validity event of any dispute or sufficiency question of the construction of this Agreement and shall not be responsible for any of the agreements referred to herein, including or the Merger Agreement or seek the assistance of a court of competent jurisdiction, and the Partnership Merger Agreement, but shall incur no liability and shall be obligated only for the performance of such duties as are specifically set forth fully protected in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreement. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made acting in accordance with this Agreementthe opinion or advice of such counsel or the direction of such court. In no event shall the Escrow Agent be liable for incidental, indirect, punitivespecial, special punitive or consequential damages.
(b) BRI Parent and the Partnership shall jointly and severally indemnify Company hereby agree to indemnify, each in the amount of fifty percent, the Escrow Agent and its officers, directors, employees and agents for, and hold it and them harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its the Escrow Agent carrying out of its duties hereunder. Escrow Agent’s right to seek indemnification and reimbursement from the parties hereto in accordance with the provisions hereof shall be its exclusive remedy in connection with any loss, including without limitation drawing on liability or expense incurred by it hereunder and shall survive for one (1) year following (i) the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement or (other than taxes on ii) the net income earlier resignation or removal of the Escrow Agent attributable to the payment of fees hereunder)Agent. BRI and the Partnership undertake to instruct the The Escrow Agent shall not be indemnified or held harmless in writing with respect to the event of losses, claims, damages, liabilities or expenses resulting from the Escrow Agent's responsibility for withholding and other taxes, assessments ’s gross negligence or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penaltieswillful misconduct.
Appears in 1 contract
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it in good faith to be genuine and duly authorized, nor for any other action or inaction except for its own negligence or willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, the Escrow Agent shall use the standard care of customarily used by custodians of funds. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementmisconduct. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirectincidental, punitive, special punitive or consequential damages.
(b) BRI Parent and the Partnership shall jointly Stockholder Representative (acting on behalf of the Merger Stockholders (and severally not individually) but only to the extent of their respective interests in the Escrow Fund and through a deduction from the Escrow Fund) hereby agree to indemnify the Escrow Agent and its officers, directors, employees and agents for, and hold it and them harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its the Escrow Agent carrying out of its duties hereunder. This right of indemnification, including without limitation drawing on compensation and reimbursement shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder). BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
Appears in 1 contract
Samples: Merger Agreement (Vaxgen Inc)
Limitation of Escrow Agent’s Liability. (a) Neither The Escrow Agent undertakes to perform such duties as are specifically set forth in this Agreement only and shall have no duty under any other agreement or document notwithstanding their being referred to herein or attached hereto as an exhibit. The Escrow Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent nor any of its directors, officers or employees shall incur no liability with respect to any action taken or suffered by it or for any inaction on its part in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by it to be genuine and duly authorized, nor for any other action or inaction except for its own willful misconduct or gross negligence; provided, that with respect to the custody of the Cash Collateral and Escrow Fund, . In no event shall the Escrow Agent shall use the standard care of customarily used by custodians of fundsbe liable for punitive, incidental or consequential damages. The Escrow Agent shall not be responsible for may rely on and use the validity or sufficiency of this Agreement Stock Powers and shall not be responsible for any of the agreements referred to herein, including the Merger Agreement and the Partnership Merger Agreement, but shall be obligated only for the performance of such duties as are specifically set forth liable in this Escrow Agreement. Without limiting the foregoing, the Escrow Agent (i) shall not be obligated to inquire as to the accuracy of any calculations used in preparing the Disbursement Certificate and (ii) shall have no obligation to inquire whether the Partnership has the right to liquidated damages pursuant to the Merger Agreementconnection therewith. In all questions arising under this Agreement, the Escrow Agent may rely on the advice of counsel, including in-house counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on upon such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it. The Escrow Agent shall not be liable for any losses resulting from the investments made in accordance with this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(b) BRI and the Partnership shall jointly and severally Parent hereby agrees to indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder, including without limitation drawing on . This right of indemnification shall survive the Letter termination of Credit.
(c) BRI and the Partnership jointly and severally hereby agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement (other than taxes on the net income resignation of the Escrow Agent attributable to the payment of fees hereunder)Agent. BRI and the Partnership undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. BRI and the Partnership jointly and severally hereby agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including The costs and expenses (including reasonable legal fees and expenses), interest and penaltiesof enforcing this right of indemnification shall also be paid by Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Acuson Corp)
