Obligations of the Escrow Agent. (a) The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable by such Legal Entity. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation. (b) The Escrow Agent shall not have any obligation to, nor shall it incur any liability for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement. (c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction. (d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf. (e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. (f) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest. (g) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, 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. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action. (h) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty. (i) Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent. (j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one document.
Appears in 3 contracts
Samples: Escrow Agreement, Escrow Agreement (Hertz Global Holdings Inc), Escrow Agreement (Hertz Global Holdings Inc)
Obligations of the Escrow Agent. (a) The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable by such Legal Entity. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation toliability under, nor shall it incur any liability for failing toor duty to inquire into, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance terms and provisions of any of its agreement, other than this Agreement. Its duties or are ministerial in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreementnature, and the Escrow Agent shall not sell, transfer or otherwise dispose of incur any liability whatsoever so long at it has acted in any manner all or any portion of the Escrow Fundsgood faith, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities for willful misconduct or obligations shall be inferred or impliedgross negligence. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall not be under have any duty duties or responsibilities hereunder except as expressly set forth herein; shall have no investment responsibility with respect to give the Escrow Funds funds or other property held hereunder; and shall have no responsibility for ascertaining or taking any action with respect to calls, conversions, exchanges, maturities, tenders, or other matters relating to any property held by it hereunder hereunder, whether or not the Escrow Agent has or is deemed to have knowledge or notice of such matters, or taking any greater degree steps to preserve rights against any parties with respect to any property held by it hereunder. The Escrow Agent may consult with counsel of care than it gives its own similar property choice, including in-house counsel, and shall not be required to invest liable for any Escrow Funds held hereunder except as provided for action taken, suffered or omitted by it in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time accordance with the Escrow Agent may request an instruction in writing from any advice of the Legal Entities and the QI and may, at its own option, 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 hereundercounsel. The Escrow Agent shall not be liable for acting in accordance with such a proposal on bound by any modification, amendment, termination, cancellation, rescission or after supersession of this Agreement unless the date specified therein, provided that the specified date same shall be at least three (3) Business Days after the applicable Legal Entityin writing and signed by Spacial, Xxxxxx, the Trustee Trust and the QI receive such party’s request for instructions and Escrow Agent, if its proposed course of actionduties as Escrow Agent hereunder are affected thereby, and provided further that, unless it shall have given its prior to so acting, written consent thereto. In the event that the Escrow Agent has not received the written instructions requested, including a refusal shall be uncertain as to the proposed course of action.
(h) In the event of any ambiguity its duties or uncertainty rights hereunder or shall receive instructions, claims or demands from any party to this Agreement which, in any notice, instruction or other communication received hereunder by the Escrow Agent's opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by the parties or by a final order or judgment of a court of competent jurisdiction. Alternatively, the Escrow Agent may, in its sole discretion, only after notifying deposit with the applicable Legal EntityClerk of any court of competent jurisdiction, the Trustee any and the QI in writingall funds, refrain from taking securities and other property held by it pursuant thereto and thereupon and, shall stand fully relieved and discharged of any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty.
(i) Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxesfurther duties hereunder. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the The Escrow Agent shall reportnot incur any liability for following the instructions herein contained or expressly provided for, and as required withholdor written instructions given by Spacial, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement Xxxxxx or the resignation or removal of the Escrow Agent.
(j) Trust. The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument certificate, affidavit, letter, document, or other writing delivered to it communication which is, upon reasonable verification, believed by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act in reliance uponto be genuine and to have been signed or sent by the proper party or parties, and may rely on statements contained therein without further inquiry or investigation. Release by the Escrow Agent of the Escrow Shares shall be fully protected not constitute a distribution by Escrow Agent, or a legal opinion of Escrow Agent that said release is lawful, or that said release does not violate any Securities laws, or other agreements. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other item deposited with it and any liability for action in relying upon, accordance with any instrument written instructions or signature reasonably certificates given to it hereunder and believed by it to be genuine signed by the proper parties. The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings or enforcement/investigatory actions of any kind which may assume that any person purporting be instituted against it in respect of the subject matter of these instructions. If it does elect to give receipt act it will do so only if it is indemnified to its satisfaction against the cost and expense of such defense or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one documentinitiation.
Appears in 3 contracts
Samples: Stock Escrow Agreement (Trust Under Agreement Dated 6/30/89), Stock Escrow Agreement (Spacial Corp), Stock Escrow Agreement (Salano James J Sr)
Obligations of the Escrow Agent. (a) The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable by such Legal Entity. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation to, nor shall it incur any liability for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Sidecar Financed Vehicles, promptly notify the GE Collateral Sidecar Administrative Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, 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. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty.
(i) Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto), the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one document.
Appears in 2 contracts
Samples: Escrow Agreement, Escrow Agreement (Hertz Global Holdings, Inc)
Obligations of the Escrow Agent. (a) The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable by such Legal Entity. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation to, nor shall it incur any liability for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, Each Interested Party acknowledges that the Escrow Agent shall not sellAgent: (i) 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, transfer or otherwise dispose of in any manner all or any portion of the Escrow FundsEACH OF WHICH IS MINISTERIAL (AND SHALL NOT BE CONSTRUED TO BE FIDUCIARY) IN NATURE, except pursuant to an order of a court of competent jurisdiction.
AND NO IMPLIED DUTIES OR OBLIGATIONS OF ANY KIND SHALL BE READ INTO THIS ESCROW AGREEMENT AGAINST OR ON THE PART OF THE ESCROW AGENT; (dii) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required obligated to comply with, take any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ legal or other form of judicial action hereunder that might in its judgment involve or administrative process that in cause it to incur any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it expense or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, liability unless it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
furnished with acceptable indemnification; (fiii) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property may rely on and shall not be required to invest protected in acting or refraining from acting upon any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, 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. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty.
(i) Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered document furnished to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for making inquiry as to or determining the genuineness, accuracy or validity thereof, or of the authority of the person signing or presenting the same; (iv) may assume that any person purporting consult counsel satisfactory to give receipt it, including in-house counsel, and the opinion or advice to make of such counsel in any statement instance shall be full and complete authorization and protection in respect of any action taken, suffered or execute any document omitted by it hereunder in connection good faith and in accordance with the provisions hereof has opinion or advice of such counsel; and (v) may engage accountants or other professionals if the Escrow Agent deems the services of such professionals necessary in the discharge of the Escrow Agent's duties hereunder. Documents and written materials referred to in this paragraph include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been duly authorized to do so. All written notices when received signed or presented by a person if it bears, as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one document.sender, the person's e-mail address; and
Appears in 2 contracts
Samples: Escrow Agreement (Locateplus Holdings Corp), Escrow Agreement (Billy Dead Inc)
Obligations of the Escrow Agent. (a) The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable by such Legal Entity. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation to, nor shall it incur any liability for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, 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. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty.
(i) Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one document.
Appears in 1 contract
Samples: Escrow Agreement (Hertz Corp)
Obligations of the Escrow Agent. (a) 7.1.1 The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable bear no liability regarding the content, authenticity, validity, correctness or form of the documents provided by such Legal Entity. Payments the Vendor and/or the Purchaser according to the provisions of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from this Escrow Agreement or the date of each Legal Entity’s receipt compliance of such invoice plus any required supporting documentationdocuments with the legal regulations or internal procedures of authorities.
7.1.2 The Escrow Agent shall verify the face conformity of the documents presented to it. The Escrow Agent shall consider duly valid all the documents provided by the Escrow Parties in accordance with the provisions set forth in this Escrow Agreement if they appear to be signed by the persons nominated in Schedule 1 (bList of Specimen Signatures) to the Escrow Account or, if these documents are issued by the competent authorities, the Escrow Agent shall consider these documents legally valid if they appear, prima facie, as being issued by that respective authority.
7.1.3 The Escrow Agent shall not have be bound by any obligation tomodification, nor shall it incur any liability for failing to, advance, use cancellation or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination rescission of this Escrow AgreementAgreement unless in writing and signed by all Parties hereto.
(c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) 7.1.4 The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply withperform any acts which will violate any law or regulations issued by any public authority. In the event of bankruptcy proceedings or enforcement proceedings against any of the Parties, any other agreement between the Legal Entities pursuant to applicable laws and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Fundsregulations, the Escrow Agent shall, notwithstanding the provisions of this Escrow Agreement, act and perform in the case of Escrow Funds of HVF, promptly notify the Trustee of accordance with such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; laws and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effectregulations.
(f) 7.1.5 The Escrow Agent shall not be under any duty obliged to give make payments from the Escrow Funds held by it hereunder Accounts if such payments could be illegal or contrary to any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time rules the Escrow Agent may request an instruction in writing from any is subject to according to the law.
7.1.6 No provision of the Legal Entities and Escrow Agreement could be deemed as creating an implicit obligation of the QI and may, at its own option, 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 hereunderEscrow Agent. The Escrow Agent shall not be liable for acting duties and obligations are exclusively the ones expressly mentioned in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty.
(i) Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end regardless of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness provision of any fact stated therein or agreement executed between the propriety or validity or Purchaser, BUTU, BEAHF and/or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one documentVendor.
Appears in 1 contract
Samples: Master Agreement for the Sale and Purchase of Shares (Elbit Imaging LTD)
Obligations of the Escrow Agent. (a) The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable by such Legal Entity. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation to, nor shall it incur any liability for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, 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. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty.
(i) Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto), the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one document.
Appears in 1 contract
Obligations of the Escrow Agent. (a) The Escrow Agent shall invoice each Legal Entity quarterly the Exchangor for authorized fees and expenses payable by such Legal Entitythe Exchangor. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entitythe Exchangor’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation to, nor shall it incur any liability for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b6.1(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities Exchangor and the QI or to which a Legal Entity the Exchangor or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity the Exchangor or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds (including, but not limited to, orders of attachment or garnishment or other forms of levies, injunctions or stays relating to the transfer of the Escrow Funds), the Escrow Agent shall, in the case of Escrow Funds of HVF, shall promptly notify the Trustee of such occurrence, in and the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Master Collateral Agent of such occurrence, and, in any case, occurrence and the Escrow Agent shall thereafter be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities Exchangor and the QI and may, at its own option, 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. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee Exchangor and the QI receive such partythe Escrow Agent’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee Exchangor and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity the Exchangor and the QI, which eliminates such ambiguity or uncertainty.
(i) Each Legal Entity The Exchangor shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to the Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity Exchangor and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by the Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i6.1(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity the Exchangor or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f5.1(vi) hereto, the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 6.3 hereof shall be valid and accepted whether signed in counterparts or one document.
Appears in 1 contract
Obligations of the Escrow Agent. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties shall be implied. The Escrow Agent shall invoice each Legal Entity quarterly have no liability under and no duty to inquire as to the provisions of any agreement other than this Agreement. The Escrow Agent may rely upon and shall not be liable for authorized fees acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and expenses payable believed by such Legal Entityit to be genuine and to have been signed or presented by the proper party or parties. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation tobe under no duty to inquire into or investigate the validity, nor shall it incur any liability for failing to, advance, use accuracy or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance content of any of its duties or in the exercise of any of its rights or powers hereundersuch document. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall not be under any have no duty to give solicit any payments that may be due it or the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, 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 hereunderFund. The Escrow Agent shall not be liable for acting any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was a cause of any loss to Buyer or the Shareholders. The Escrow Agent will not be required to calculate or compute any amount(s) referenced herein to be released. Any amounts withdrawn from the Escrow Fund shall be clearly stated in the form of a Joint Instruction directing the delivery of the Escrow Fund or a Final Resolution as the Escrow Agent shall not pay out amounts in the absence of a Joint Instruction or Final Resolution. The parties covenant and agree they shall provide Joint Instructions in a manner consistent with the terms of the Merger Agreement and this Agreement in order to give appropriate effect to their terms. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such a proposal on counsel, accountants or after other skilled persons. In the date specified therein, provided event that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal shall be uncertain as to the proposed course of action.
(h) In the event of any ambiguity its duties or uncertainty rights hereunder or in shall receive instructions, claims or demands from any notice, instruction or other communication received hereunder by the Escrow Agent, the Escrow Agent mayparty hereto which, in its sole discretionopinion, only after notifying conflict with any of the applicable Legal Entityprovisions of this Agreement, the Trustee and the QI in writing, it shall be entitled to refrain from taking any action other than retaining possession and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the Escrow Funds unless other parties hereto or by a final order or judgment of a court of competent jurisdiction. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent receives written instructionsbe liable for special, signed by such Legal Entity and the QIindirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), which eliminates such ambiguity or uncertainty.
(i) Each Legal Entity shall pay or reimburse even if the Escrow Agent upon request, for any taxes relating to has been advised of the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way likelihood of such taxes. In addition, all interest loss or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, damage and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms regardless of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time form of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agentaction.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one document.
Appears in 1 contract
Samples: Escrow Agreement (Quadramed Corp)
Obligations of the Escrow Agent. (a) The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable by such Legal Entity. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from It is agreed that the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation to, nor shall it incur any liability for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to are those expressly set forth herein, specifically provided herein and no dutiesother. The Escrow Agent shall have no liability under, responsibilities or obligations shall be inferred duty to inquire into or impliedconstrue the terms and provisions of, the Merger Agreement or any other contract or instrument entered into by the parties hereto in connection herewith. Other than The Escrow Agent's duties are purely ministerial in nature and so long as contemplated hereinit has acted in good faith, the Escrow Agent shall not be subject to, incur no liability whatsoever for actions taken pursuant to the terms of this Agreement except for its willful misconduct or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, 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 hereundergross negligence. The Escrow Agent shall not be liable for acting in accordance with such a proposal on bound by any modification, amendment, termination, cancellation, rescission or after supercession of this Agreement unless it shall have given prior written consent thereto. In the date specified therein, provided event that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal (a) shall be uncertain as to the proposed course of action.
(h) In the event of any ambiguity its duties or uncertainty rights hereunder or in any notice(b) shall receive conflicting instructions, instruction claims or other communication received hereunder by demands from Lifecodes or the Escrow AgentStockholders' Representative, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, it shall be entitled to refrain from taking any action other than retaining possession of the to keep safely all property held in Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty.
until (i) Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, directed otherwise in writing by the Stockholders' Representative and paid only as Lifecodes or (ii) until it shall be directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS an arbitration award or any other taxing authoritycourt order. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon have no liability for following the instructions contained herein or written instructions given by Lifecodes and the Stockholders' Representative. The Escrow Agent shall have no responsibility for the genuineness or validity of any order, judgment, certification, demand, notice, instrument document or other writing delivered item deposited with it and shall have no liability for acting in accordance with any written instructions or certificates given to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine signed by the proper parties. The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to defend any legal proceedings which may assume that any person purporting be instituted against it with respect to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized subject matter of these instructions unless requested to do so. All written notices when received as provided pursuant so and indemnified to Section 6.03 hereof shall be valid its satisfaction against the cost and accepted whether signed in counterparts or one documentexpense of such defense.
Appears in 1 contract
Obligations of the Escrow Agent. (a) The It is agreed that the duties and obligations of the Escrow Agent shall invoice each Legal Entity quarterly for authorized fees are those herein specifically provided and expenses payable by such Legal Entityno other. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation toliability under, nor or duty to inquire into, the terms and provisions of any agreement, other than this Agreement. The Escrow Agent's duties are ministerial in nature and the Escrow Agent shall it not incur any liability whatsoever so long as it has acted in good faith except for failing to, advance, use or risk, in any manner or for any purpose, gross negligence.
(a) Buyer represents to the Escrow Agent that Buyer (by its own funds or otherwise incur financial liability in duly authorized representatives) is authorized to enter into this Agreement and that the performance Escrow Agent is entitled to rely on this representation without the need to confirm the authority of any the representatives.
(b) Seller represents to the Escrow Agent that Seller (by its duly authorized representatives) is authorized to enter into this Agreement and that the Escrow Agent is entitled to rely on this representation without the need to confirm the authority of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreementrepresentatives.
(c) Except The Escrow Agent may consult with counsel of its choice, including without limitation, in-house counsel, and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel. The Escrow Agent shall not be bound by any modification, amendment, termination, cancellation, rescission or suppression of this Agreement unless the same shall be in writing and signed by Seller and Buyer and, if its rights or duties as expressly contemplated Escrow Agent hereunder are affected thereby, by this the Escrow Agreement, Agent as well.
(d) In the event that the Escrow Agent shall not sellbe uncertain as to its duties or rights hereunder or shall receive instructions, transfer claims or otherwise dispose of demands from any party hereto which, in its opinion, conflict with any manner all or any portion of the Escrow Fundsprovisions of this Agreement, except pursuant its sole obligation shall be to an order keep safely all property held in escrow until it shall be directed otherwise in writing by the parties hereto or by a final judgment of a court order of competent jurisdiction.
(de) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject toincur any liability for following the instructions herein contained or expressly provided for, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of written instructions given jointly by the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effecthereto.
(f) The Escrow Agent shall not be under have any duty responsibility for the genuineness or validity of any document or other item deposited with it and any liability for action in accordance with any written instructions given to give the Escrow Funds held it hereunder and reasonably believed by it hereunder to be signed by the proper parties.
(g) The Escrow Agent shall not be required to institute legal proceedings of any greater degree of care than it gives its own similar property kind and shall not be required to invest initiate or defend any Escrow Funds held hereunder except as provided for legal proceedings which may arise in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestrespect of the subject matter of these instructions.
(gh) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, 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. The Escrow Agent shall not be liable responsible for acting in accordance with such a proposal on or after be required to enforce or interpret any of the date specified therein, provided that terms or conditions of the specified date shall be at least three Purchase Agreement or any other agreement (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity this Agreement) between Buyer and the QI, which eliminates such ambiguity or uncertaintySeller.
(i) Each Legal Entity The Escrow Agent shall pay not be responsible or reimburse liable in any manner whatsoever for the performance of or by Buyer or Seller of their respective obligations under this Agreement, nor shall the Escrow Agent upon request, be responsible or liable in any manner whatsoever for the failure of the other parties to this Agreement or of any taxes relating third party to honor any of the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions provisions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(j) The Escrow Agent agrees to hold all information related to the Purchase Agreement, including the terms and conditions and the transactions contemplated thereby in confidence (the "Confidential Information"). The Escrow Agent, during the term and after termination of this Agreement, shall be entitled not disclose any Confidential Information to rely upon any orderperson (other than its own directors, judgmentofficers, certificationemployees, demandagents and contractors who must have such information for the performance of it's obligations under this Agreement) or use any Confidential Information for purposes other than those contemplated by this Agreement. Confidential Information is not meant to include any information which, noticeat the time of disclosure, instrument is: (i) generally known by the public; (ii) received from an unaffiliated third party without a breach by the receiving party or other writing delivered to it such third party of any confidentiality obligation; (iii) information that has been independently developed by a Legal Entity the receiving party; or otherwise hereunder without being (iv) required to determine the authenticity be disclosed by operation of law or the correctness upon reasonable advice of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one documentcounsel.
Appears in 1 contract
Samples: Asset Purchase Agreement (At Track Communications Inc)
Obligations of the Escrow Agent. (a) The Escrow Agent undertakes to perform only such duties as are specifically set forth herein and shall invoice each Legal Entity quarterly not be bound in any way by any agreement or contract between Alpha1 and Bachem (whether or not the Escrow Agent has knowledge thereof). The Escrow Agent, acting or refraining from acting in good faith, shall not be liable for authorized fees and expenses payable any mistake of fact or error of judgment by such Legal Entityit or for any acts or omissions by it of any kind unless caused by willful misconduct or gross negligence. Payments of reasonable fees and expenses pursuant to an invoice The Escrow Agent shall be due thirty entitled to rely upon the advice of counsel (30) days from which may be of the date Escrow Agent's own choosing). The Escrow Agent shall have no responsibility for the contents of each Legal Entity’s receipt any writing submitted to it hereunder and shall be entitled in good faith to rely without any liability upon the contents thereof and may assume that any person purporting to give any such writing in connection with the provisions of such invoice plus any required supporting documentationthis Agreement has been duly authorized to do so.
(b) The In the event any property held by the Escrow Agent hereunder shall not have be attached, garnished or levied upon under any obligation tocourt order, nor or if the delivery of such property shall it incur be stayed or enjoined by any liability for failing tocourt order, advanceor if any court order, use judgment or risk, in decree shall be made or entered affecting such property or affecting any manner or for any purpose, its own funds or otherwise incur financial liability in act by the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow AgreementAgent, the Escrow Agent shall not sellmay, transfer in its sole discretion, obey and comply with all writs, orders, judgments or otherwise dispose decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of in any manner all or any portion of this Agreement to the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of contrary. If the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, obeys and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply complies with any direction such writs, orders, judgments or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative orderdecrees, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative processshall have given prompt written notification to Alpha1 and Bachem, it shall not be liable to any of the parties hereto or to any other person person, firm or entity even though corporation, by reason of such ordercompliance, judgmentnotwithstanding that such writs, decreeorders, writ judgments or process decrees may be subsequently modified reversed, modified, annulled, set aside or vacated or otherwise determined to have been without legal force or effectvacated.
(fc) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except makes no representation as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, 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. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action.
(h) In validity, value, genuineness or the event collectibility of any ambiguity or uncertainty hereunder or in any noticecheck, instruction draft or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty.
(i) Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating instrument deposited to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow AgentAccount.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one document.
Appears in 1 contract
Obligations of the Escrow Agent. XFM and Pariya agree that:
(a) The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable by such Legal Entity. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation to, nor shall it incur any liability for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall not be under any duty to give the Escrow Funds Documents and the Escrow Amount held by it hereunder any greater degree of care than it gives to its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestproperty.
(gb) At any time this Agreement expressly sets forth all the duties of the Escrow Agent may request an instruction in writing from with respect to any of and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Legal Entities and the QI and may, at its own option, 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 hereunderEscrow Agent. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after bound by the date specified therein, provided that provisions of any agreement among the specified date shall be at least three other parties hereto except this Agreement.
(3c) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has shall not received the written instructions requestedbe liable, including a refusal for any loss, liability, claim, action, damages or expense arising out of or in connection with its performance of or failure to the proposed course perform any of actionits obligations under this Agreement save for any gross negligence, fault or wilful default on its part.
(hd) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received hereunder by the Escrow Agent, XFM and Pariya shall jointly and severally indemnify and hold harmless the Escrow Agent mayfrom and against any and all losses, liabilities, claims, actions, damages and expenses, including legal fees and disbursements, arising out of and in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless connection with this Agreement.
(e) the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity shall not in any way be liable for any failure or uncertainty.delay in carrying out any of its obligations under this Agreement directly or indirectly owing to:
(i) Each Legal Entity shall pay any causes or reimburse circumstances beyond its control including (without limitation) orders of any court of competent jurisdiction or governmental laws, delays, restrictions, revocations or typhoons; or
(ii) any claims made or action taken in respect of all or any of the interests in the Escrow Documents and the Escrow Amount by any third party; or
(iii) any instructions received in respect of the Escrow Documents and the Escrow Amount or any of them being ambiguous or erroneous; or
(iv) any delay caused as a result of the Escrow Agent upon request, for any taxes relating to the Escrow Funds with seeking advice in respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report matter related to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow AgentAgreement.
(jf) The the Escrow Agent shall be entitled to rely upon any order, judgmentjudgement, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the The Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to or make any statement or execute any document in connection with the provisions hereof has been duly authorized authorised to do so. All written notices when received as provided .
(h) the Escrow Agent may act pursuant to Section 6.03 hereof the advice of counsels or other professional advisers with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in accordance with such advice, and may pay such counsel reasonable compensation therefor. The Escrow Agent has acted as Hong Kong legal counsel to XFM in connection with the Sale and Purchase Agreement and may continue to act in such capacity for XFM from time to time, notwithstanding its duties as Escrow Agent hereunder.
(i) the Escrow Agent shall not be under any obligation to take any action under this Agreement which may involve it in any expense or expose it to any liability, the payment of which expense or an indemnity in respect of which liability, is not in the opinion of the Escrow Agent assured to it.
(j) the Escrow Agent shall not be liable in any respect on account of the identity, authorities or rights of the parties executing or delivering or purporting to execute or deliver any documents or papers deposited or called for hereunder.
(k) if the Escrow Agent reasonably requires other or further instruments in connection with these instructions or obligations in respect hereto, the necessary Parties shall join in furnishing such instruments.
(l) should any dispute arise with respect to the delivery and/or ownership or right of possession of the Escrow Documents held by the Escrow Agent hereunder, the Escrow Agent is authorised and directed to retain the Escrow Documents and the Escrow Amount until the Escrow Agent shall have received any joint written instructions executed by XFM and Pariya directing the Escrow Agent how to act in connection therewith.
(m) by signing this Agreement, the Escrow Agent becomes a party hereto only for the purpose of this Agreement; the Escrow Agent does not become a party to the Sale and Purchase Agreement and/or other relevant documents.
(n) the right to vote the Escrow Shares shall be valid exercised by or as directed by the Pariya, and accepted whether signed in counterparts the Escrow Agent shall have no rights or one documentresponsibilities with respect to voting the Escrow Shares nor any ownership interest therein.
(o) the Escrow Agent shall not be responsible for any taxes imposed upon or asserted against the Escrow Shares or the Escrow Amount and such taxes, if any, shall be the responsibility of and shall be paid by the Pariya.
Appears in 1 contract
Samples: Escrow Agreement (XINHUA SPORTS & ENTERTAINMENT LTD)
Obligations of the Escrow Agent. (a) The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable by such Legal Entity. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation toliability under, nor or duty to inquire into, the terms and provisions of any agreement, other than this Agreement. The Escrow Agent shall it incur any liability for failing to, advance, use or risk, in any manner or hold the Escrow Shares without compensation as a stakeholder only. The Escrow Agent is not and shall not be deemed to be a trustee for any purposeparty for any purpose and is merely acting as a depository with the limited duties herein described. Its duties are ministerial in nature, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, and the Escrow Agent shall not sell, transfer or otherwise dispose of incur any liability whatsoever so long at it has acted in any manner all or any portion of the Escrow Fundsgood faith, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities for willful misconduct or obligations shall be inferred or impliedgross negligence. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall not be under have any duty duties or responsibilities hereunder except as expressly set forth herein; shall have no investment responsibility with respect to give the Escrow Funds Shares or other property held hereunder; and shall have no responsibility for ascertaining or taking any action with respect to calls, conversions, exchanges, maturities, tenders, or other matters relating to any property held by it hereunder hereunder, whether or not the Escrow Agent has or is deemed to have knowledge or notice of such matters, or taking any greater degree steps to preserve rights against any parties with respect to any property held by it hereunder. The Escrow Agent may consult with counsel of care than it gives its own similar property choice, including in-house counsel, and shall not be required to invest liable for any Escrow Funds held hereunder except as provided for action taken, suffered or omitted by it in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time accordance with the Escrow Agent may request an instruction in writing from any advice of the Legal Entities and the QI and may, at its own option, 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 hereundercounsel. The Escrow Agent shall not be liable for acting in accordance with such a proposal on bound by any modification, amendment, termination, cancellation, rescission or after supersession of this Agreement unless the date specified therein, provided that the specified date same shall be at least three (3) Business Days after in writing and signed by the applicable Legal EntityCompany, the Trustee Winsonic and the QI receive such party’s request for instructions and Escrow Agent, if its proposed course of actionduties as Escrow Agent hereunder are affected thereby, and provided further that, unless it shall have given its prior to so acting, written consent thereto. In the event that the Escrow Agent has not received the written instructions requested, including a refusal shall be uncertain as to the proposed course of action.
(h) In the event of any ambiguity its duties or uncertainty rights hereunder or shall receive instructions, claims or demands from the Company or Winsonic which, in its opinion, conflict with any noticeof the provisions of this Agreement, instruction or other communication received hereunder it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by the Escrow AgentCompany and Winsonic or by a final order or judgment of a court of competent jurisdiction. Alternatively, the Escrow Agent may, in its sole discretion, only after notifying deposit with the applicable Legal EntityClerk of any court of competent jurisdiction, the Trustee any and the QI in writingall funds, refrain from taking securities and other property held by it pursuant thereto and thereupon and, shall stand fully relieved and discharged of any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty.
(i) Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxesfurther duties hereunder. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the The Escrow Agent shall reportnot incur any liability for following the instructions herein contained or expressly provided for, and as required withhold, any taxes it determines may be required or written instructions given by any law the Company or regulation in effect at the time of distributionWinsonic. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument certificate, affidavit, letter, document, or other writing delivered to it communication which is, upon reasonable verification, believed by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act in reliance uponto be genuine and to have been signed or sent by the proper party or parties, and may rely on statements contained therein without further inquiry or investigation. Release by the Escrow Agent of the Escrow Shares shall be fully protected not constitute a distribution by Escrow Agent, or a legal opinion of Escrow Agent that said release is lawful, or that said release does not violate any Securities laws, or other agreements. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other item deposited with it and any liability for action in relying upon, accordance with any instrument written instructions or signature reasonably certificates given to it hereunder and believed by it to be genuine signed by the proper parties. The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings or enforcement/investigatory actions of any kind which may assume that be instituted against it in respect of the subject matter of these instructions. If it does elect to act it will do so only if it is indemnified to its satisfaction against the cost and expense of such defense or initiation. The Escrow Agent shall have no obligation to anyone to invest any person purporting of the deposited shares. Any cash dividends shall be payable to give receipt the Holder. Any stock dividends shall be deposited in escrow hereunder. The Escrow Agent shall not be responsible in any manner whatsoever for any failure or advice inability of the Holders to make deliver shares to the Escrow Agent or otherwise to honor any statement or execute any document in connection with of the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one documentof this Agreement.
Appears in 1 contract
Obligations of the Escrow Agent. The obligations of the Escrow Agent under this Escrow Agreement are subject to the following terms and conditions:
(a) The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees is not a party to and expenses payable is not bound by such Legal Entity. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentationagreement other than this Escrow Agreement.
(b) The Escrow Agent shall acts hereunder as a depository only and is not have any obligation to, nor shall it incur any liability responsible for failing to, advance, use or risk, liable in any manner whatsoever for the sufficiency, correctness, genuineness or for any purpose, its own funds or otherwise incur financial liability in the performance validity of any funds, shares, documents or other materials deposited with it. The Buyer and the Company agree to and hereby do waive any suit, claim, demand or cause of its duties or in the exercise action of any kind which they may have or may assert against the Escrow Agent arising out of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive relating to the termination execution or performance by the Escrow Agent of this Escrow Agreement, unless such suit, claim, demand or cause of action is based upon the willful misconduct, gross negligence or bad faith of the Escrow Agent or any of its officers, employees, agents or representatives.
(c) Except as expressly contemplated The Escrow Agent shall not have any responsibility for the genuineness or validity of any notice, evidence or other document or item delivered to it, and the Escrow Agent shall be entitled to rely upon and shall be protected in acting upon any written notice, consent, receipt or other evidence or paper document which the Escrow Agent reasonably believes to be genuine and to be signed by the proper person.
(d) The Escrow Agent shall not be liable for any error of judgment or for any acts done or steps taken, omitted or admitted by it, for any mistake of facts or law, or for anything which the Escrow Agent may do or refrain from doing in connection herewith except for the Escrow Agent's own willful misconduct, gross negligence or bad faith or that of its officers, employees, agents or representatives.
(e) As to any legal questions arising in connection with the administration of this Escrow Agreement, the Escrow Agent may rely absolutely upon the opinions given to it by its counsel and shall not sellbe free of liability for acting in reliance on such opinions.
(f) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, transfer claims or otherwise dispose of demands from any party hereto which, in its opinion, conflict with any manner all or any portion of the provisions of this Escrow FundsAgreement, except pursuant it shall be entitled to an refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by both the Buyer and the Company or by a final order or judgment of a court of competent jurisdiction.
(dg) It is the intention of the parties hereto that the Escrow Agent shall never be required to use or advance its own funds or, except as otherwise contemplated hereby, incur personal financial liability in its performance of its duties or the exercise of any of its rights and powers hereunder.
(h) The duties, duties and responsibilities and obligations of the Escrow Agent under hereunder shall be determined solely by the express provisions of this Escrow Agreement shall be limited to those expressly set forth hereinAgreement, and no duties, other or further duties or responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, 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. The Escrow Agent shall not be liable for acting in accordance with such a proposal on have any liability under, nor duty to inquire into the terms and provisions of, any agreement or after the date specified thereininstructions, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the outlined in this Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertaintyAgreement.
(i) Each Legal Entity shall pay or reimburse The Buyer and the Company agree, jointly and severally, to indemnify and hold harmless the Escrow Agent upon requestfrom any costs, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold damages, expenses or claims, including reasonable attorneys' fees, which the Escrow Agent harmless from any amounts it is obligated to pay in the way may incur or sustain as a result of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination arising out of this Escrow Agreement or the Escrow Agent's duties relating thereto; provided that notwithstanding the foregoing, neither the Buyer nor the Company shall be required to indemnify the Escrow Agent for any such costs, damages, expenses or claims arising as a result of (i) the breach of this Escrow Agreement by the Escrow Agent or (ii) the willful misconduct, gross negligence or bad faith of the Escrow Agent or any of its officers, employees, agents, or representatives. The Buyer or the Company, as the case may be, shall have a right of contribution against the other in respect of one-half of the amount paid by it or them pursuant to this Section 3.5(i). Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits). The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness termination of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the this Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one documentAgreement.
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Obligations of the Escrow Agent. (a) The Each Interested Party acknowledges that the Escrow Agent: (i) 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 IS 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; (ii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for making inquiry as to or determining the genuineness, accuracy or validity thereof, or of the authority of the person signing or presenting the same; (iv) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel; and (v) may engage accountants or other professionals if the Escrow Agent shall invoice each Legal Entity quarterly for authorized fees deems the services of such professionals necessary in the discharge of the Escrow Agent’s duties hereunder; and expenses payable (vi) is authorized, in its sole discretion, to comply with orders issued or process entered by any court with respect to the Escrow Account, the Offering Proceeds or this Agreement, without determination by the Escrow Agent of such Legal Entitycourt’s jurisdiction in the matter. Payments Documents and written materials referred to in this paragraph include, without limitation, e-mail and other electronic transmissions capable of reasonable fees being printed, whether or not they are in fact printed; and expenses pursuant to an invoice any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a person if it bears, as sender, the person’s e-mail address. If any Offering Proceeds then held in the Escrow Account are 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 due thirty (30) days from stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then in any such events the date 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 of each Legal Entity’s receipt its own choosing is binding upon it, and if the Escrow Agent complies with any such order, writ, judgment, or decree, it shall not be liable to depositor, or to any other person, firm or corporation by reason of such invoice plus any required supporting documentationcompliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(b) The Escrow Agent shall not have any obligation to, nor shall it incur any liability be liable to the other parties hereto for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties own acts or in the exercise omissions of any kind, except for its own gross negligence. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) Notwithstanding any term in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any of the Offering Proceeds (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than two business days after it has received the applicable documents required under this Agreement.
(d) Stratus agrees to compensate the Escrow Agent in accordance with the fee schedule attached as Exhibit A to this Agreement, and to reimburse the Escrow Agent on demand for all costs and expenses incurred in connection with the administration of this Agreement or the escrow created hereby or the performance or observance of its rights duties hereunder.
(e) Stratus and the Underwriter shall jointly and severally indemnify and hold harmless the Escrow Agent, its agents and employees against any cost or powers hereunderexpenses (including attorneys’ fees and fees and costs associated with any complaint in interpleader), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to this Agreement or the administration of its duties hereunder (collectively, the “Damages”), except to the extent any Damages are caused by the Escrow Agent’s gross negligence, bad faith or willful misconduct. The provisions of this Section 6.01(b) foregoing indemnification and agreement to hold harmless shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall does not be under have, and will at no time become entitled to, any duty to give ownership interest in the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestOffering Proceeds.
(g) At any time the The Escrow Agent may request an instruction in writing resign and be discharged from any of the Legal Entities its obligations hereunder by mailing written notice to Stratus and the QI and may, at its own option, include in Underwriter of such request the course of action it proposes resignation specifying a date when such resignation is to take effect; provided, however, that no such resignation will take effect until a successor escrow agent, which must be a bank, has been appointed and qualified and has executed an escrow agreement substantially in the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course form of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of actionthis Agreement.
(h) In the event the Escrow Agent is notified of any ambiguity dispute, disagreement or uncertainty hereunder legal action between the parties hereto (other than the Escrow Agreement), or between any one or more parties hereto and any other person, relating to or arising in any notice, instruction connection with the Escrow Account or other communication received hereunder by performance of the Escrow Agent’s duties under this Agreement, the Escrow Agent may, is authorized to suspend further performance hereunder and to retain and hold the Offering Proceeds then in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Account. The Escrow Agent receives may take no further action with respect thereto until the matter has been fully resolved, as evidenced by written instructions, notification signed by the parties and any other parties to such Legal Entity and the QIdispute, which eliminates such ambiguity disagreement or uncertaintylegal action.
(i) Each Legal Entity shall pay With regard to any litigation among the parties hereto, or reimburse if the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred reasonably believes in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts its sole discretion that it is obligated to pay may become involved in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directionslitigation, the Escrow Agent shall reportis authorized to deposit the Offering Proceeds then held in the Escrow Account with the Clerk of the New York Supreme Court, Civil Term, New York County (the “Court”) and as required withhold, any taxes it determines may be required by any law or regulation interplead the parties to this Agreement. Upon so depositing the Offering Proceeds and filing its complaint in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar yearinterpleader, the Escrow Agent shall report will be completely discharged and released from all further liability or responsibility under the terms hereof. With respect to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal deposit of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it Offering Proceeds by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act as provided in reliance uponthis paragraph, the parties hereto, for themselves, their heirs, successors and shall be fully protected in relying uponassigns, any instrument or signature reasonably believed by it do hereby submit themselves to be genuine the jurisdiction of the Court and may assume that any person purporting to give receipt or advice to make any statement or execute any document do hereby appoint the Clerk of the Court as their agent of service of all proceeds in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed proceeding mentioned in counterparts or one documentthis paragraph.
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Obligations of the Escrow Agent. (a) The Each Interested Party acknowledges that the Escrow Agent: (i) 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 IS 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; (ii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for making inquiry as to or determining the genuineness, accuracy or validity thereof, or of the authority of the person signing or presenting the same; (iv) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel; and (v) may engage accountants or other professionals if the Escrow Agent shall invoice each Legal Entity quarterly for authorized fees deems the services of such professionals necessary in the discharge of the Escrow Agent’s duties hereunder; and expenses payable (vi) is authorized, in its sole discretion, to comply with orders issued or process entered by any court with respect to the Escrow Account, the Offering Proceeds or this Agreement, without determination by the Escrow Agent of such Legal Entitycourt’s jurisdiction in the matter. Payments Documents and written materials referred to in this paragraph include, without limitation, e-mail and other electronic transmissions capable of reasonable fees being printed, whether or not they are in fact printed; and expenses pursuant to an invoice any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a person if it bears, as sender, the person’s e-mail address. If any Offering Proceeds then held in the Escrow Account are 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 due thirty (30) days from stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then in any such events the date 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 of each Legal Entity’s receipt its own choosing is binding upon it, and if the Escrow Agent complies with any such order, writ, judgment, or decree, it shall not be liable to depositor, or to any other person, firm or corporation by reason of such invoice plus any required supporting documentationcompliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(b) The Escrow Agent shall not have any obligation to, nor shall it incur any liability be liable to the other parties hereto for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties own acts or in the exercise omissions of any kind, except for its own gross negligence. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) Notwithstanding any term in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any of the Offering Proceeds (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than two business days after it has received the applicable documents required under this Agreement.
(d) Stratus agrees to compensate the Escrow Agent in accordance with the fee schedule attached as Exhibit A to this Agreement, and to reimburse the Escrow Agent on demand for all costs and expenses incurred in connection with the administration of this Agreement or the escrow created hereby or the performance or observance of its rights duties hereunder.
(e) Stratus and the Underwriter shall jointly and severally indemnify and hold harmless the Escrow Agent, its agents and employees against any cost or powers hereunderexpenses (including attorneys’ fees and fees and costs associated with any complaint in interpleader), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to this Agreement or the administration of its duties hereunder (collectively, the “Damages”), except to the extent any Damages are caused by the Escrow Agent’s gross negligence, bad faith or willful misconduct. The provisions of this Section 6.01(b) foregoing indemnification and agreement to hold harmless shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall does not be under have, and will at no time become entitled to, any duty to give ownership interest in the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interestOffering Proceeds.
(g) At any time the The Escrow Agent may request an instruction in writing resign and be discharged from any of the Legal Entities its obligations hereunder by mailing written notice to Stratus and the QI and may, at its own option, include in Underwriter of such request the course of action it proposes resignation specifying a date when such resignation is to take effect; provided, however, that no such resignation will take effect until a successor escrow agent, which must be a bank, has been appointed and qualified and has executed an escrow agreement substantially in the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course form of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of actionthis Agreement.
(h) In the event the Escrow Agent is notified of any ambiguity dispute, disagreement or uncertainty hereunder legal action between the parties hereto (other than the Escrow Agreement), or between any one or more parties hereto and any other person, relating to or arising in any notice, instruction connection with the Escrow Account or other communication received hereunder by performance of the Escrow Agent’s duties under this Agreement, the Escrow Agent may, is authorized to suspend further performance hereunder and to retain and hold the Offering Proceeds then in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Account. The Escrow Agent receives may take no further action with respect thereto until the matter has been fully resolved, as evidenced by written instructions, notification signed by the parties and any other parties to such Legal Entity and the QIdispute, which eliminates such ambiguity disagreement or uncertaintylegal action.
(i) Each Legal Entity shall pay With regard to any litigation among the parties hereto, or reimburse if the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred reasonably believes in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts its sole discretion that it is obligated to pay may become involved in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directionslitigation, the Escrow Agent shall report, is authorized to deposit the Offering Proceeds then held in the Escrow Account with the Clerk of Court (the “Court”) and as required withhold, any taxes it determines may be required by any law or regulation interplead the parties to this Agreement. Upon so depositing the Offering Proceeds and filing its complaint in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar yearinterpleader, the Escrow Agent shall report will be completely discharged and released from all further liability or responsibility under the terms hereof. With respect to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal deposit of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it Offering Proceeds by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto, the Escrow Agent may act as provided in reliance uponthis paragraph, the parties hereto, for themselves, their heirs, successors and shall be fully protected in relying uponassigns, any instrument or signature reasonably believed by it do hereby submit themselves to be genuine the jurisdiction of the Court and may assume that any person purporting to give receipt or advice to make any statement or execute any document do hereby appoint the Clerk of the Court as their agent of service of all proceeds in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed proceeding mentioned in counterparts or one documentthis paragraph.
Appears in 1 contract
