Protection of Escrow Agent. In consideration of this escrow by the Escrow Agent, the parties hereto agree that: (i) the Company, the Shareholder and the Investor may examine the Escrow Funds at any time during regular business hours and upon prior written notice at the office of the Escrow Agent and the Escrow Agent shall periodically provide a written accounting of the Escrow Funds to the Company, the Shareholder and the Investor in accordance with the Escrow Agent's standard practices, but in no event less often than monthly; (ii) the Escrow Agent's duties and responsibilities shall be limited to those expressly set forth in this Agreement, and the Escrow Agent shall not be subject to, nor obliged to recognize, any other agreement between, or direction or instruction of, any or all of the parties hereto even though reference thereto may be made herein; provided, however, that this Agreement may be amended at any time or times in accordance with Section 8(g) below; (iii) subject to Sections 3(f) and 7(e) hereof, no assignment of the interest of any of the parties or their successors shall be binding upon the Escrow Agent unless and until written evidence of such assignment shall be filed with and accepted by the Escrow Agent; (iv) the Escrow Agent shall exercise the same degree of care toward the Escrow Funds as it exercises toward its own similar property or similar property held in escrow for the account of others (whichever degree of care is higher), and shall not be held to any higher standard of care under this Agreement; (v) the Escrow Agent makes no representation as to the validity, value, genuineness or collectibility of any security or other document or instrument held by or delivered to it; (vi) the Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder; (vii) provided that it is not grossly negligent in doing so, the Escrow Agent shall be entitled to rely upon any order, judgment, Direction Letter, certification, instruction, notice or other writing delivered to it in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or service thereof; the Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; the Escrow Agent may act pursuant to the advice of counsel chosen by it 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; (viii) notwithstanding anything herein to the contrary, the Escrow Agent shall be under no duty to monitor or enforce compliance by any Person with any term or provision of the Purchase Agreement; (ix) if the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions from any of the undersigned with respect to any property held by it in escrow pursuant to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of this Agreement, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise by a Direction Letter or Final Order; (x) if the Escrow Agent becomes involved in litigation in connection with this Agreement, it shall have the right to retain counsel, and shall be reimbursed for all reasonable costs and expenses, including its reasonable attorneys' fees and expenses, incurred in connection therewith; subject to the provisions of Section 4(a)(iii) hereof, such costs and expenses shall be paid by the Company, provided that the Escrow Agent shall not be entitled to any reimbursement for its fees and expenses incurred as a result of its gross negligence or willful misconduct; (xi) the Escrow Agent shall not be liable hereunder for, and, subject to the provisions of Section 4(a)(iii) hereof, the Company agrees to indemnify the Escrow Agent for and hold it harmless as to, any loss, liability or expense, including attorneys' fees and expenses, paid or incurred by the Escrow Agent in connection with the Escrow Agent's duties under this Agreement, unless such loss, liability or expense was paid or incurred in violation of Section 6(b)(ii) or as a result of the Escrow Agent's gross negligence or willful misconduct; (xii) the Escrow Agent may, in its sole and absolute discretion, resign in a manner consistent with Section 6(c) hereof; and (xiii) the Company, the Investor and the Shareholder may jointly remove and replace the Escrow Agent at any time, subject to the provisions of Section 6(c).
Appears in 2 contracts
Samples: Escrow Agreement (Greenfield Online Inc), Stock Purchase and Redemption Agreement (Greenfield Online Inc)
Protection of Escrow Agent. In consideration of this escrow by the Escrow Agent, the parties hereto agree that:
(i) upon the Companyrequest of the Purchaser, the Shareholder and the Investor may examine the Escrow Funds at any time during regular business hours and upon prior written notice at the office of the Escrow Agent and Investors or PHMD, the Escrow Agent shall periodically provide a written accounting of the Escrow Funds Fund to the CompanySellers, the Shareholder Parent, the Purchaser and the Investor in accordance with the Escrow Agent's standard practices, but in no event less often than monthlyInvestors;
(ii) the Escrow Agent's ’s duties and responsibilities shall be limited to those expressly set forth in this Agreement, and the Escrow Agent shall not be subject to, nor obliged to recognize, any other agreement agreement, including but not limited to the Purchase Agreement and the Securities Purchase Agreement, between, or direction or instruction of, any or all of the parties hereto even though reference thereto may be made herein; provided, however, that this Agreement may be amended at any time or times in accordance with Section 8(g6(g) below;
(iii) subject to Sections 3(f) and 7(eSection 6(e) hereof, no assignment of the interest of any of the parties or their successors shall be binding upon the Escrow Agent unless and until written evidence of such assignment in form satisfactory to Escrow Agent shall be filed with and accepted by the Escrow Agent;
(iv) the Escrow Agent shall exercise the same degree of care toward the Escrow Funds Fund as it exercises toward its own similar property or similar property held in escrow for the account of others (whichever degree of care is higher), and shall not be held to any higher standard of care under this Agreement. Except for intentional misrepresentation, gross negligence or intentional misconduct, the Escrow Agent shall not be liable to the Parent, the Purchaser, the Investors or the Sellers for any act, or failure to act, by the Escrow Agent in connection with this Agreement. The Escrow Agent will not be liable for special, indirect, incidental or consequential damages hereunder;
(v) the Escrow Agent makes no representation as to the validity, value, genuineness or collectibility collectability of any security or other document or instrument held by or delivered to it;
(vi) the Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder;
(vii) provided that it is not grossly negligent in doing so, the Escrow Agent shall be entitled to rely upon any order, judgment, Direction Letter, certification, instruction, notice or other writing delivered to it in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or service thereof; the Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; the Escrow Agent may act pursuant to the advice of counsel chosen by it 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;
(viii) notwithstanding anything herein to the contrary, the Escrow Agent shall be under no duty to monitor or enforce compliance by any Person the Sellers, the Parent, the Purchaser or the Investors with any term or provision of the Purchase Agreement or the Securities Purchase Agreement;
(ix) if the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions from any of the undersigned with respect to any property held by it in escrow pursuant to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of this Agreement, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise by a Direction Letter or Final Order;
(x) if the Escrow Agent becomes involved in litigation in connection with this Agreement, it shall have the right to retain counsel, and shall be reimbursed for all reasonable costs and expenses, including its reasonable attorneys' ’ fees and expenses, incurred in connection therewith; subject to the provisions of Section 4(a)(iii) hereof, such costs and expenses shall be paid paid, one-half by the CompanySellers and one-half by the Parent, the Purchaser and the Investors (provided that the Escrow Agent shall not be entitled to any reimbursement for its fees and expenses incurred as a result of its gross negligence negligence, intentional misrepresentation or willful misconduct);
(xi) the Escrow Agent shall not be liable hereunder for, and, subject to and the provisions of Section 4(a)(iii) hereofParent, the Company agrees Purchaser and the Sellers agree severally (and not jointly) (one-half to be borne by the Parent and the Purchaser and one-half to be borne jointly by the Sellers) to indemnify the Escrow Agent for and hold it harmless as to, any loss, liability or expense, including attorneys' ’ fees and expenses, paid or incurred by the Escrow Agent in connection with the Escrow Agent's ’s duties under this Agreement, unless such loss, liability or expense was paid or incurred in violation of Section 6(b)(ii) or as a result of the Escrow Agent's ’s gross negligence negligence, intentional misrepresentation or willful misconduct;
(xii) The Parent, Purchaser, Investors and Sellers agree and acknowledge that they have requested Escrow Agent to act as the escrow agent, despite Escrow Agent’s disclosure to the Parent, the Purchaser, the Investors and Sellers that the Escrow Agent represents the Parent and the Purchaser in connection with the Purchase Agreement, the transactions contemplated thereby, or other matters, and the Parent in connection with the Securities Purchase Agreement. The Parent, the Purchaser, the Investors and Sellers agree and acknowledge that the Escrow Agent has disclosed that the Escrow Agent’s representation of the Parent and the Purchaser in connection with Purchase Agreement, the transactions contemplated thereby or other matters, and the Parent in connection with the Securities Purchase Agreement may be adverse to (i) its duties as Escrow Agent hereunder or (ii) its duties to the Parent and the Purchaser, and therefore, an actual conflict of interest under the District of Columbia’s Rules of Professional Conduct may exist. Escrow Agent does not believe that its representation of a party hereunder will impair its ability to perform its duties as Escrow Agent pursuant to the terms herein. The Parent, the Purchaser, the Investors and Sellers have each had the opportunity to consult with counsel and with full knowledge of all relevant facts the Parent, the Purchaser, the Investors and Sellers acknowledge, agree and consent to Escrow Agent (i) continuing to act as Escrow Agent hereunder and (ii) continuing to represent the Parent and the Purchaser in the transaction contemplated by the Purchase Agreement, and in any other matter, including, without limitation, any matter, claim, or dispute between the parties hereto, whether or not Escrow Agent is in possession of the Escrow Fund and continues to act as Escrow Agent. TO THE EXTENT THAT ANY CONFLICT OR POTENTIAL CONFLICT ARISES, THE PARENT, THE PURCHASER, THE INVESTORS AND THE SELLERS, INDIVIDUALLY AND ON BEHALF OF SUCH PARTY’S SUCCESSORS AND ASSIGNS, WAIVE ANY OBJECTION THERETO. In the event the Parent and the Purchaser elects to discontinue its engagement of Escrow Agent as its attorney, or should an adverse relationship arise between the Parent, the Purchaser, the Investors and the Sellers, the Parent, the Purchaser, the Investors and the Sellers acknowledge that Escrow Agent may continue without restriction to act as Escrow Agent hereunder;
(xiii) the Escrow Agent may, in its sole and absolute discretion, resign in a manner consistent with Section 6(c5(c) hereof; and
(xiiixiv) the CompanyParent, the Investor Purchaser, the Investors and the Shareholder Sellers may jointly remove and replace the Escrow Agent at any time, subject to the provisions of Section 6(c5(c).
Appears in 2 contracts
Samples: Escrow Agreement (ICTV Brands Inc.), Escrow Agreement (Photomedex Inc)
Protection of Escrow Agent. In consideration of this escrow by the Escrow Agent, the parties hereto agree that:
(i) the Company, the Shareholder and the Investor may examine the Escrow Funds at any time during regular business hours and upon prior written notice at the office of the Escrow Agent and the 8.1. The Escrow Agent shall periodically provide a written accounting of the Escrow Funds to the Company, the Shareholder and the Investor in accordance with the Escrow Agent's standard practices, but in have no event less often duties or responsibilities other than monthly;
(ii) the Escrow Agent's duties and responsibilities shall be limited to those expressly set forth in this Agreement, and the herein. The Escrow Agent shall not have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be subject tomade, nor obliged or to recognize, enforce any obligation of any person to perform any other agreement between, or direction or instruction of, any or all of the parties hereto even though reference thereto may be made herein; provided, however, that this Agreement may be amended at any time or times in accordance with Section 8(g) below;
(iii) subject to Sections 3(f) and 7(e) hereof, no assignment of the interest of any of the parties or their successors shall be binding upon the Escrow Agent unless and until written evidence of such assignment shall be filed with and accepted by the Escrow Agent;
(iv) the Escrow Agent shall exercise the same degree of care toward the Escrow Funds as it exercises toward its own similar property or similar property held in escrow for the account of others (whichever degree of care is higher), and shall not be held to any higher standard of care under this Agreement;
(v) the Escrow Agent makes no representation as to the validity, value, genuineness or collectibility of any security or other document or instrument held by or delivered to it;
(vi) the Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder;
(vii) provided that it is not grossly negligent in doing so, the Escrow Agent shall be entitled to rely upon any order, judgment, Direction Letter, certification, instruction, notice or other writing delivered to it in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or service thereof; the Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; the Escrow Agent may act pursuant to the advice of counsel chosen by it 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;
(viii) notwithstanding anything herein to the contrary, the act. The Escrow Agent shall be under no duty liability to monitor the other parties hereto or enforce compliance to anyone else by reason of any Person with failure on the part of any term party hereto or provision any maker, guarantor, endorser or other signatory of the Purchase Agreement;
(ix) if any document or any other person to perform such person's obligations under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent shall be uncertain as by GoAmerica and Flash relating to its duties or rights hereunder or shall receive instructions from any of the undersigned with respect to any property held by it in escrow pursuant to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of Account under this Agreement, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise by a Direction Letter or Final Order;
(x) if the Escrow Agent becomes involved in litigation in connection with this Agreement, it shall have the right to retain counsel, and shall be reimbursed for all reasonable costs and expenses, including its reasonable attorneys' fees and expenses, incurred in connection therewith; subject to the provisions of Section 4(a)(iii) hereof, such costs and expenses shall be paid by the Company, provided that the Escrow Agent shall not be entitled obligated to recognize any reimbursement for its fees agreement between any and expenses incurred as a result all of its gross negligence the persons referred to herein, notwithstanding that references thereto may be made herein and whether or willful misconduct;not it has knowledge thereof.
(xi) the 8.2. The Escrow Agent shall not be liable hereunder forto GoAmerica or Flash or to anyone else for any action taken or omitted by it, andor any action suffered by it to be taken or omitted, subject in good faith and in the exercise of its own best judgment and shall be liable only in case of its own bad faith or willful misconduct or gross negligence or intentional failure to comply with its obligations under this Agreement. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the provisions truth and acceptability of Section 4(a)(iii) hereofany information therein contained), the Company agrees to indemnify the Escrow Agent for and hold it harmless as to, any loss, liability or expense, including attorneys' fees and expenses, paid or incurred which is believed by the Escrow Agent in connection with to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent's Agent signed by the proper party or parties and, if the duties under this Agreement, unless such loss, liability or expense was paid or incurred in violation of Section 6(b)(ii) or as a result rights of the Escrow Agent's gross negligence Agent are affected, unless it shall give its prior written consent thereto.
8.3. The Escrow Agent shall not be responsible for the sufficiency or willful misconduct;
(xii) accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein; nor shall the Escrow Agent maybe responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, in its sole and absolute discretion, resign in a manner consistent authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property or this Agreement. The Escrow Agent shall have no responsibility with Section 6(c) hereof; and
(xiii) respect to the Company, the Investor and the Shareholder may jointly remove and replace use or application of any funds or other property paid or delivered by the Escrow Agent at any time, subject pursuant to the provisions of Section 6(c)hereof.
Appears in 1 contract
Samples: Escrow Agreement (Goamerica Inc)
Protection of Escrow Agent. In consideration of the acceptance of this escrow by the Escrow Agent, the parties hereto agree that:
hereby agree, jointly and severally, for themselves and their successors and assigns, that (i) the Company, the Shareholder and the Investor any party may examine the books and records evidencing the Escrow Funds Account at any time during regular business hours and upon prior written notice at the office of the Escrow Agent and the Escrow Agent shall periodically provide a written accounting of the Escrow Funds to the Company, the Shareholder and the Investor in accordance with during the Escrow Agent's standard practices, but in no event less often than monthly;
normal business hours; (ii) the Escrow Agent's duties and responsibilities shall be limited to those expressly set forth in this Agreementno assignment, and the Escrow Agent shall not be subject totransfer, nor obliged to recognize, any other agreement betweenconveyance, or direction hypothecation of any right, title, or instruction of, any or all of the parties hereto even though reference thereto may be made herein; provided, however, that this Agreement may be amended at any time or times in accordance with Section 8(g) below;
(iii) subject to Sections 3(f) and 7(e) hereof, no assignment of the interest of any of party or its successor in and to the parties or their successors Escrow Account shall be binding upon the Escrow Agent Agent, unless and until written evidence of such assignment assignment, transfer, conveyance, or hypothecation in form satisfactory to the Escrow Agent shall be filed with and accepted by the Escrow Agent;
; (iv) the Escrow Agent shall exercise the same degree of care toward the Escrow Funds as it exercises toward its own similar property or similar property held in escrow for the account of others (whichever degree of care is higher), and shall not be held to any higher standard of care under this Agreement;
(v) the Escrow Agent makes no representation as to the validity, value, genuineness or collectibility of any security or other document or instrument held by or delivered to it;
(viiii) the Escrow Agent shall not be called upon personally liable for any act it may do or omit to advise any party do as to selling Escrow Agent under this Agreement, unless resulting from gross negligence or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder;
wilful misconduct; (viiiv) provided that it is not grossly negligent in doing so, the Escrow Agent shall be entitled may disregard any and all notices or warnings given by any of the parties hereto (except notices expressly envisioned in this Escrow Agreement), or by any other person or entity, excepting only orders or process of court, and is hereby expressly authorized to rely upon comply with and obey any and all orders, judgments, or decrees of any court reasonably believed by the Escrow Agent to have jurisdiction of the subject matter and the parties, and in case the Escrow Agent obeys or complies with any such order, judgment, Direction Letter, certification, instruction, notice or other writing delivered to it in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness decree of any fact stated therein or the propriety or validity or service thereof; the Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by such court it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; the Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement and shall not be liable for to any action taken of the parties hereto or omitted in accordance with to any other person or entity by reason of such advice;
compliance, notwithstanding any such order, judgment, or decree being subsequently reversed, modified, annulled, set aside or vacated, or found to have been entered without jurisdiction; and (viiiv) notwithstanding anything herein to the contraryNaPro and BNP shall jointly, but not severally, indemnify and hold the Escrow Agent shall be under no duty to monitor or enforce compliance by any Person with any term or provision of the Purchase Agreement;
(ix) if the Escrow Agent shall be uncertain harmless as to its duties or rights hereunder or shall receive instructions from any of the undersigned with respect to any property held by it in escrow pursuant to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of this Agreement, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise by a Direction Letter or Final Order;
(x) if the Escrow Agent becomes involved in litigation in connection with this Agreement, it shall have the right to retain counsel, and shall be reimbursed for all reasonable costs and expenses, including its reasonable attorneys' fees and expenses, incurred in connection therewith; subject to the provisions of Section 4(a)(iii) hereof, such costs and expenses shall be paid by the Company, provided that the Escrow Agent shall not be entitled to any reimbursement for its fees and expenses incurred as a result of its gross negligence or willful misconduct;
(xi) the Escrow Agent shall not be liable hereunder for, and, subject to the provisions of Section 4(a)(iii) hereof, the Company agrees to indemnify the Escrow Agent for and hold it harmless as to, any loss, claim, damage, or liability or expense, including attorneys' fees and expenses, paid or incurred by the Escrow Agent in connection with to any other person or entity by reason of the Escrow Agent's duties under this Agreementhaving acted as Escrow Agent hereunder, unless such lossor in connection herewith (collectively, liability or expense was paid or incurred in violation of Section 6(b)(ii) or as a result of "Losses"), other than those Losses resulting from the Escrow Agent's gross negligence or willful misconduct;
(xii) the Escrow Agent may, in its sole and absolute discretion, resign in a manner consistent with Section 6(c) hereof; and
(xiii) the Company, the Investor and the Shareholder may jointly remove and replace the Escrow Agent at any time, subject to the provisions of Section 6(c).
Appears in 1 contract
Protection of Escrow Agent. In consideration of this escrow by the Escrow Agent, the The parties hereto agree that:
(i) the Company, the Shareholder and the Investor may examine the Escrow Funds at any time during regular business hours and upon prior written notice at the office of the Escrow Agent and the Escrow Agent shall periodically provide a written accounting of the Escrow Funds to the Company, the Shareholder and the Investor in accordance with the Escrow Agent's standard practices, but in no event less often than monthly;
(ii) the a. Escrow Agent's duties and responsibilities as escrow agent in connection with this Agreement shall be purely ministerial and shall be limited to those expressly set forth in this Agreement. Escrow Agent is not a principal, participant or beneficiary in any transaction underlying this Agreement and shall have no duty to inquire beyond the terms and provisions hereof. Escrow Agent shall have no responsibility or obligation of any kind in connection with this Agreement or the Escrow Deposits, other than to receive, hold, invest, reinvest and deliver the Escrow Deposits as herein provided. Without limiting the generality of the forgoing, it is hereby expressly agreed and stipulated by the parties hereto that Escrow Agent shall not be subject torequired to exercise any discretion hereunder and shall have no investment or management responsibility and, nor obliged accordingly, shall have no duty to recognizeor liability for its failure to provide investment recommendations or investment advice to any of the other parties to this Agreement. Escrow Agent shall not be liable for any error in judgment, any other agreement betweenact or omission, any mistake of law or fact, or direction for anything it may do or instruction ofrefrain from doing in connection herewith, except for, subject to paragraph d. hereinbelow, its own willful misconduct or gross negligence (it being understood that gross negligence shall include loss (other than investment loss) by Escrow Agent of all or any part of the items escrowed pursuant to this Agreement or all failure to follow any investment or other instructions of any of the other parties hereto provided herein). It is the intention of the parties hereto even though reference thereto may that Escrow Agent shall never be made herein; providedrequired to use, however, that this Agreement may be amended at any time advance or times risk its own funds or otherwise incur financial liability in accordance with Section 8(g) below;
(iii) subject to Sections 3(f) and 7(e) hereof, no assignment of the interest performance of any of its duties or the parties or their successors shall be binding upon the Escrow Agent unless exercise of any of its rights and until written evidence of such assignment shall be filed with and accepted by the Escrow Agentpowers hereunder;
(iv) the Escrow Agent shall exercise the same degree of care toward the Escrow Funds as it exercises toward its own similar property or similar property held in escrow for the account of others (whichever degree of care is higher), and shall not be held to any higher standard of care under this Agreement;
(v) b. the Escrow Agent makes no representation as to the validity, value, genuineness or collectibility of any security or other document or instrument held by or delivered to it;
(vi) c. the Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, to any securities or other property deposited hereunder;
(vii) provided that it is not grossly negligent in doing so, the Escrow Agent shall be entitled to rely upon any order, judgment, Direction Letter, certification, instruction, notice or other writing delivered to it in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or service thereof; the d. Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; the Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement rely on, and shall not be liable for acting or refraining from acting upon, any action taken written notice, instruction or omitted in accordance with such advice;
(viii) notwithstanding anything herein request or other paper furnished to it hereunder or pursuant hereto and reasonably believed by it to have been signed or presented by the contrary, the proper party or parties. Escrow Agent shall be under responsible for holding, investing, reinvesting and disbursing the Escrow Deposits pursuant to this Agreement; provided, however, that in no duty event shall Escrow Agent be liable for any lost profits, lost savings or other special, exemplary, consequential or incidental damages in excess of Escrow Agent's fee hereunder (except those arising from its own willful misconduct or gross negligence) and provided, further, that Escrow Agent shall have no liability for any loss arising from any cause beyond its control including, but not limited to, the following: (a) acts of God, force majeure, including, without limitation, war (whether or not declared or existing), revolution, insurrection, riot, civil commotion, accident, fire explosion, stoppage of labor, strikes and other differences with employees; (b) the act, failure or neglect of any other party to monitor this Agreement; (c) any delay, error, omission or enforce compliance by default of any Person with mail, courier, telegraph, cable and wireless agency or operator; or (d) the acts or edicts of any term government or provision governmental agency or other group or entity exercising governmental powers. Escrow Agent is not responsible or liable in any manner whatsoever for the (i) sufficiency, correctness, genuineness or validity of the Purchase Agreementsubject matter of this Agreement or any part hereof , (ii) transaction or transactions requiring or underlying the execution of this Agreement or the form or execution hereof or (iii) identity or authority of any person executing this Agreement or any part hereof, or depositing the Escrow Deposits;
(ix) e. if the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions from any of the undersigned with respect to any property held by it in escrow pursuant to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of this AgreementAgreement or any instructions received from any other of the undersigned, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise by the parties pursuant to an amendment or waiver to this Agreement in accordance with Section 4(g) below, or by order of a Direction Letter or Final Ordercourt of competent jurisdiction specified in Section 4(c) below;
(x) f. should any controversy arise involving the parties hereto or any of them or any other person, firm or entity with respect to this Agreement or the Escrow Deposits, or should a substitute escrow agent fail to be designated as provided in paragraph g., or if Escrow Agent should be in doubt as to what action to take, the Escrow Agent becomes shall have the right, but not the obligation, to institute a petition for interpleader in any court of competent jurisdiction specified in Section 4(c) below to determine the rights of the parties hereto. Should a petition for interpleader be instituted, or should the Escrow Agent be threatened with, or become involved in in, litigation or binding arbitration in connection with this Agreement, it shall have the right to retain counsel, and shall be reimbursed for all reasonable costs and expenses, including its reasonable attorneys' fees and expenses, incurred in connection therewith; subject to the provisions of Section 4(a)(iii) hereof, such costs and expenses shall be paid by the Company, provided that Agreement or the Escrow Agent shall not be entitled Deposits, then the other parties agree, jointly and severally, to any reimbursement for its fees and expenses incurred as a result of its gross negligence or willful misconduct;
(xi) the Escrow Agent shall not be liable hereunder for, and, subject to the provisions of Section 4(a)(iii) hereof, the Company agrees to indemnify reimburse the Escrow Agent for and hold it harmless as to, any loss, liability or expense, including attorneys' its reasonable attorney's fees and any and all other reasonable out of pocket expenses, paid or losses, costs and damages incurred by the Escrow Agent in connection with such threatened or actual litigation prior to any disbursement hereunder (subject, as to MAXXAM, NL and the Escrow Agent's duties under this AgreementCMRT, unless to the Allocation Provision, as such loss, liability or expense was paid or incurred term is defined in violation of Section 6(b)(ii3(h) or as a result of the Escrow Agent's gross negligence or willful misconductbelow);
(xii) the Escrow Agent may, in its sole and absolute discretion, resign in a manner consistent with Section 6(c) hereof; and
(xiii) the Companyg. MAXXAM, the Investor CMRT and the Shareholder NL may jointly remove and replace the Escrow Agent at any time. If the Escrow Agent shall be removed as escrow agent by the parties or shall resign or otherwise cease to act as escrow agent, subject MAXXAM, the CMRT and NL shall mutually agree upon a successor which successor shall be deemed to be the Escrow Agent for all purposes of this Agreement. If a successor Escrow Agent has not been appointed and accepted such appointment by the end of the thirty (30) day period following such removal, resignation or cessation, the Escrow Agent may apply to any court in which it is permitted to commence litigation pursuant to Section 4(c), for the appointment of a successor Escrow Agent and deposit the Escrow Deposits with the then chief or presiding judge of such court (and upon so depositing such property and filing its complaint in interpleader, it shall be relieved of all liability under the terms hereof as to the provisions property so deposited), and the reasonable costs and expenses and reasonable attorneys' fees which the Escrow Agent incurs in connection with such a proceeding shall be borne one-half by MAXXAM, one-quarter by the CMRT, and one-quarter by NL. The removal, resignation or other ceasing to act as escrow agent by the Escrow Agent or any successor thereto shall have no effect on this Agreement or any of the rights of the parties hereunder, all of which shall remain in full force and effect;
h. the other parties to this Agreement hereby jointly and severally indemnify Escrow Agent, its officers, directors, partners, employees and agents (each herein called an "Indemnified Party") against, and hold each Indemnified Party harmless from, any and all expenses, including, without limitation, reasonable attorneys' fees and court costs, losses, costs, damages and claims, including but not limited to, costs of investigation, litigation and arbitration, tax liability and loss on investments suffered or incurred by any Indemnified Party in connection with or arising from or out of this Agreement, except such acts or omissions as may result from the willful misconduct or gross negligence of such Indemnified Party; provided that the foregoing joint and several indemnity shall not affect the liability of MAXXAM, the CMRT and NL, as among themselves, for the specified items for which the Escrow Agent is to be indemnified (which in the absence of fault by any of MAXXAM, the CMRT and/or NL, shall be one-half to MAXXAM, one-fourth to the CMRT and one-fourth to NL, and in the presence of fault by any of MAXXAM, the CMRT and/or NL, shall be as any court of competent jurisdiction specified in Section 6(c4(c) decides; the "Allocation Provision"). It is express intent of each other party to this Agreement to indemnify and hold harmless the Indemnified Parties from their own negligent acts or omissions where permitted to do so by applicable law;
i. MAXXAM, as to one half, the CMRT, as to one quarter, and NL, as to one quarter, hereby agree, upon execution by Escrow Agent of this Agreement, to pay Escrow Agent (A) an annual fee of $4,000.00 for its services hereunder in accordance with the fee schedule attached hereto, the first payment to be paid on the date hereof and successive payments being due on each anniversary date hereof, such fees being completely earned when due; and (B) all of Escrow Agent's out-of-pocket expenses reasonably incurred in connection with the performance of its duties and enforcement of its rights hereunder and otherwise in connection with the preparation, operation, administration and enforcement of this Agreement, including, without limitation, reasonable attorneys' fees, brokerage costs and related expenses incurred by Escrow Agent; and
j. Escrow Agent may consult with its counsel or other counsel satisfactory to it concerning any question relating to its duties or responsibilities hereunder or otherwise in connection herewith, and shall not be liable for any action taken, suffered or omitted by it in good faith upon the advice of such counsel.
Appears in 1 contract
Samples: Stock Purchase Agreement (Combined Master Retirement Trust)
Protection of Escrow Agent. In consideration of this escrow by the Escrow Agent, the parties hereto agree that:
(i) the Company, the Shareholder and the Investor may examine the Escrow Funds at any time during regular business hours and upon prior written notice at the office of the Escrow Agent and the 8.1. The Escrow Agent shall periodically provide a written accounting of the Escrow Funds to the Company, the Shareholder and the Investor in accordance with the Escrow Agent's standard practices, but in have no event less often duties or responsibilities other than monthly;
(ii) the Escrow Agent's duties and responsibilities shall be limited to those expressly set forth in this Agreement, and the herein. The Escrow Agent shall not have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be subject tomade, nor obliged or to recognize, enforce any obligation of any person to perform any other agreement between, or direction or instruction of, any or all of the parties hereto even though reference thereto may be made herein; provided, however, that this Agreement may be amended at any time or times in accordance with Section 8(g) below;
(iii) subject to Sections 3(f) and 7(e) hereof, no assignment of the interest of any of the parties or their successors shall be binding upon the Escrow Agent unless and until written evidence of such assignment shall be filed with and accepted by the Escrow Agent;
(iv) the Escrow Agent shall exercise the same degree of care toward the Escrow Funds as it exercises toward its own similar property or similar property held in escrow for the account of others (whichever degree of care is higher), and shall not be held to any higher standard of care under this Agreement;
(v) the Escrow Agent makes no representation as to the validity, value, genuineness or collectibility of any security or other document or instrument held by or delivered to it;
(vi) the Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder;
(vii) provided that it is not grossly negligent in doing so, the Escrow Agent shall be entitled to rely upon any order, judgment, Direction Letter, certification, instruction, notice or other writing delivered to it in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or service thereof; the Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; the Escrow Agent may act pursuant to the advice of counsel chosen by it 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;
(viii) notwithstanding anything herein to the contrary, the act. The Escrow Agent shall be under no duty liability to monitor the other parties hereto or enforce compliance to anyone else by reason of any Person with failure on the part of any term party hereto or provision any maker, guarantor, endorser or other signatory of the Purchase Agreement;
(ix) if any document or any other person to perform such person's obligations under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent shall be uncertain as by GOAM and the Stockholders relating to its duties or rights hereunder or shall receive instructions from any of the undersigned with respect to any property held by it in escrow pursuant to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of Account under this Agreement, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise by a Direction Letter or Final Order;
(x) if the Escrow Agent becomes involved in litigation in connection with this Agreement, it shall have the right to retain counsel, and shall be reimbursed for all reasonable costs and expenses, including its reasonable attorneys' fees and expenses, incurred in connection therewith; subject to the provisions of Section 4(a)(iii) hereof, such costs and expenses shall be paid by the Company, provided that the Escrow Agent shall not be entitled obligated to recognize any reimbursement for its fees agreement between any and expenses incurred as a result all of its gross negligence the persons referred to herein, notwithstanding that references thereto may be made herein and whether or willful misconduct;not it has knowledge thereof.
(xi) the 8.2. The Escrow Agent shall not be liable hereunder forto GOAM or the Stockholders or to anyone else for any action taken or omitted by it, andor any action suffered by it to be taken or omitted, subject in good faith and in the exercise of its own best judgment and shall be liable only in case of its own bad faith or willful misconduct or gross negligence or intentional failure to comply with its obligations under this Agreement. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the provisions truth and acceptability of Section 4(a)(iii) hereofany information therein contained), the Company agrees to indemnify the Escrow Agent for and hold it harmless as to, any loss, liability or expense, including attorneys' fees and expenses, paid or incurred which is believed by the Escrow Agent in connection with to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent's Agent signed by the proper party or parties and, if the duties under this Agreement, unless such loss, liability or expense was paid or incurred in violation of Section 6(b)(ii) or as a result rights of the Escrow Agent's gross negligence Agent are affected, unless it shall give its prior written consent thereto.
8.3. The Escrow Agent shall not be responsible for the sufficiency or willful misconduct;
(xii) accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein; nor shall the Escrow Agent maybe responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, in its sole and absolute discretion, resign in a manner consistent authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property or this Agreement. The Escrow Agent shall have no responsibility with Section 6(c) hereof; and
(xiii) respect to the Company, the Investor and the Shareholder may jointly remove and replace use or application of any funds or other property paid or delivered by the Escrow Agent at any time, subject pursuant to the provisions of Section 6(c)hereof.
Appears in 1 contract
Samples: Escrow Agreement (Goamerica Inc)
Protection of Escrow Agent. In consideration of this escrow by the Escrow Agent, the parties hereto agree that:
(i) the Company, the Shareholder and the Investor may examine the Escrow Funds at any time during regular business hours and upon prior written notice at the office of the Escrow Agent and the 8.1. The Escrow Agent shall periodically provide a written accounting of the Escrow Funds to the Company, the Shareholder and the Investor in accordance with the Escrow Agent's standard practices, but in have no event less often duties or responsibilities other than monthly;
(ii) the Escrow Agent's duties and responsibilities shall be limited to those expressly set forth in this Agreement, and the herein. The Escrow Agent shall not have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be subject tomade, nor obliged or to recognize, enforce any obligation of any person to perform any other agreement between, or direction or instruction of, any or all of the parties hereto even though reference thereto may be made herein; provided, however, that this Agreement may be amended at any time or times in accordance with Section 8(g) below;
(iii) subject to Sections 3(f) and 7(e) hereof, no assignment of the interest of any of the parties or their successors shall be binding upon the Escrow Agent unless and until written evidence of such assignment shall be filed with and accepted by the Escrow Agent;
(iv) the Escrow Agent shall exercise the same degree of care toward the Escrow Funds as it exercises toward its own similar property or similar property held in escrow for the account of others (whichever degree of care is higher), and shall not be held to any higher standard of care under this Agreement;
(v) the Escrow Agent makes no representation as to the validity, value, genuineness or collectibility of any security or other document or instrument held by or delivered to it;
(vi) the Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder;
(vii) provided that it is not grossly negligent in doing so, the Escrow Agent shall be entitled to rely upon any order, judgment, Direction Letter, certification, instruction, notice or other writing delivered to it in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or service thereof; the Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; the Escrow Agent may act pursuant to the advice of counsel chosen by it 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;
(viii) notwithstanding anything herein to the contrary, the act. The Escrow Agent shall be under no duty liability to monitor the other parties hereto or enforce compliance to anyone else by reason of any Person with failure on the part of any term party hereto or provision any maker, guarantor, endorser or other signatory of the Purchase Agreement;
(ix) if any document or any other person to perform such person's obligations under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent shall be uncertain as by GoAmerica and the Shareholders relating to its duties or rights hereunder or shall receive instructions from any of the undersigned with respect to any property held by it in escrow pursuant to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of Account under this Agreement, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise by a Direction Letter or Final Order;
(x) if the Escrow Agent becomes involved in litigation in connection with this Agreement, it shall have the right to retain counsel, and shall be reimbursed for all reasonable costs and expenses, including its reasonable attorneys' fees and expenses, incurred in connection therewith; subject to the provisions of Section 4(a)(iii) hereof, such costs and expenses shall be paid by the Company, provided that the Escrow Agent shall not be entitled obligated to recognize any reimbursement for its fees agreement between any and expenses incurred as a result all of its gross negligence the persons referred to herein, notwithstanding that references thereto may be made herein and whether or willful misconduct;not it has knowledge thereof.
(xi) the 8.2. The Escrow Agent shall not be liable hereunder forto GoAmerica or the Shareholders or to anyone else for any action taken or omitted by it, andor any action suffered by it to be taken or omitted, subject in good faith and in the exercise of its own best judgment and shall be liable only in case of its own bad faith or willful misconduct or gross negligence or intentional failure to comply with its obligations under this Agreement. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the provisions truth and acceptability of Section 4(a)(iii) hereofany information therein contained), the Company agrees to indemnify the Escrow Agent for and hold it harmless as to, any loss, liability or expense, including attorneys' fees and expenses, paid or incurred which is reasonably believed by the Escrow Agent in connection with to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent's Agent signed by the proper party or parties and, if the duties under this Agreement, unless such loss, liability or expense was paid or incurred in violation of Section 6(b)(ii) or as a result rights of the Escrow Agent's gross negligence Agent are affected, unless it shall give its prior written consent thereto.
8.3. The Escrow Agent shall not be responsible for the sufficiency or willful misconduct;
(xii) accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein; nor shall the Escrow Agent maybe responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, in its sole and absolute discretion, resign in a manner consistent authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property or this Agreement. The Escrow Agent shall have no responsibility with Section 6(c) hereof; and
(xiii) respect to the Company, the Investor and the Shareholder may jointly remove and replace use or application of any funds or other property paid or delivered by the Escrow Agent at any time, subject pursuant to the provisions of Section 6(c)hereof.
Appears in 1 contract
Samples: Escrow Agreement (Goamerica Inc)
Protection of Escrow Agent. In consideration of this escrow by the Escrow Agent, the parties hereto Escrow Agent, Purchaser and Sellers agree that:
(ia) the Company, the Shareholder Purchaser and the Investor Sellers may examine the Escrow Funds Fund, the Escrow Shares, the Escrow Dividends, the Escrow Income, or the accounts or other records of the Escrow Agent relating thereto, at any time during regular business hours and upon prior written notice at the office of the Escrow Agent and the Escrow Agent shall periodically provide a written accounting of the Escrow Funds to the Company, the Shareholder and the Investor in accordance with the Escrow Agent's standard practices, but in no event less often than monthly;.
(iib) the Escrow Agent's duties and responsibilities shall be limited to those expressly set forth in this Agreement, and the Escrow Agent shall not be subject to, nor obliged to recognize, any other agreement between, or direction or instruction of, any or all of the parties hereto even though reference thereto may be made herein; provided, however, that this Agreement may be amended at any time or times in accordance with Section 8(g) the provisions below;.
(iiic) subject to Sections 3(f) and 7(e) hereof, no No assignment of the interest of any either of the parties Purchaser or Sellers or their successors shall be binding upon the Escrow Agent unless and until written evidence of such assignment in form satisfactory to Escrow Agent shall be filed with and accepted by the Escrow Agent;.
(ivd) the In performing its duties hereunder, Escrow Agent shall exercise may rely on statements furnished to it by Purchaser, the same degree of care toward the Company and Sellers, or any other evidence deemed by Escrow Funds as it exercises toward its own similar property or similar property held in escrow for the account of others (whichever degree of care is higher)Agent to be reliable, and shall not be held entitled to any higher standard act on the advice of care under this Agreement;counsel.
(ve) the If any property held by Escrow Agent makes no representation as to hereunder is attached, garnished, or levied upon under the validity, value, genuineness or collectibility order of any security court, or the delivery thereof shall be stayed or enjoined by the order of any court, or if any other document order, judgment or instrument held decree shall be made or entered by any court any part of such property, Escrow Agent is hereby expressly authorized to obey and comply with all writs, orders or delivered to it;
(vi) the decrees so entered or issued, whether with or without jurisdiction. Escrow Agent shall not be called upon liable to advise any party as to selling of the parties hereto or retainingtheir successors by reason of compliance with any such writ, order or taking decree notwithstanding such writ, order or refraining from taking any action with respect todecree being subsequently reversed, any securities modified, annulled, set aside or other property deposited hereunder;vacated.
(viif) provided that it is not grossly negligent Escrow Agent may, in doing soits sole and absolute discretion, deposit the Escrow Fund, the Escrow Agent Shares, the Escrow Dividends and the Escrow Income or so much thereof as remains in its hands with the then chief or presiding judge of the United States District Court whose jurisdiction includes either Idaho Falls, Idaho, or Tulsa, Oklahoma, and interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader, it shall be relieved of all liability under the terms hereof as to the property so deposited and shall be entitled to rely upon any orderrecover in such interpleader action, judgmentfrom the other parties hereto, Direction Letterits reasonable attorneys' fees and related costs and expenses incurred in commencing and prosecuting such action and furthermore, certificationthe parties hereto for themselves their successors and assigns, instructiondo hereby submit themselves to the jurisdiction of each said Court and do hereby appoint the then Clerk, notice or other writing delivered to it in compliance with acting Clerk, of each said Court as their agent for the provisions service of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or service thereof; the Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document all process in connection with the provisions hereof has been duly authorized to do so; the Escrow Agent may act pursuant to the advice of counsel chosen by it 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;proceedings.
(viiig) notwithstanding Notwithstanding anything herein to the contrary, the Escrow Agent shall be under no duty to monitor or enforce compliance by any Person Purchaser or Sellers with any term or provision of the Purchase Agreement;
(ix) if Agreement or any other agreement between the parties. The parties agree to hold Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions from any of the undersigned with respect to any property held harmless for actions taken by it in escrow pursuant reliance upon statements furnished to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of this Agreement, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise by a Direction Letter Purchaser or Final Order;
(x) if the Escrow Agent becomes involved in litigation in connection with this Agreement, it shall have the right to retain counsel, and shall be reimbursed for all reasonable costs and expenses, including its reasonable attorneys' fees and expenses, incurred in connection therewith; subject to the provisions of Section 4(a)(iii) hereof, such costs and expenses shall be paid by the Company, provided that the Escrow Agent shall not be entitled to any reimbursement for its fees and expenses incurred as a result of its gross negligence or willful misconduct;
(xi) the Escrow Agent shall not be liable hereunder for, and, subject to the provisions of Section 4(a)(iii) hereof, the Company agrees to indemnify the Escrow Agent for and hold it harmless as to, any loss, liability or expense, including attorneys' fees and expenses, paid or incurred by the Escrow Agent in connection with the Escrow Agent's duties under this Agreement, unless such loss, liability or expense was paid or incurred in violation of Section 6(b)(ii) or as a result of the Escrow Agent's gross negligence or willful misconduct;
(xii) the Escrow Agent may, in its sole and absolute discretion, resign in a manner consistent with Section 6(c) hereof; and
(xiii) the Company, the Investor and the Shareholder may jointly remove and replace the Escrow Agent at any time, subject to the provisions of Section 6(c)Sellers.
Appears in 1 contract
Protection of Escrow Agent. In consideration of this escrow by the Escrow Agent, the The parties hereto agree that:
(i) the Company, the Shareholder Buyer and the Investor Seller may examine the Escrow Funds Fund at any time during regular business hours and upon reasonable prior written notice at the office of the Escrow Agent and the Escrow Agent shall will periodically provide a written accounting of the Escrow Funds Fund to the Company, the Shareholder Buyer and the Investor Seller in accordance with the Escrow Agent's ’s standard practices, but in no event less often than monthly;
(ii) the Escrow Agent's ’s duties and responsibilities shall will be limited to those expressly set forth in this Agreement, and the Escrow Agent shall not be subject to, nor obliged to recognize, any other agreement between, or direction or instruction of, any or all of the parties hereto even though reference thereto may be made herein; provided, however, that this Agreement may be amended at any time or times in accordance with Section 8(g) below;
(iii) subject to Sections 3(f) and 7(eSection 8(d) hereof, no assignment of the interest of any of the parties or their successors shall will be binding upon the Escrow Agent unless and until written evidence of such assignment shall in form satisfactory to the Escrow Agent will be filed with and accepted in writing by the Escrow Agent;
(iv) the Escrow Agent shall will exercise the same degree of care toward the Escrow Funds Fund as it exercises toward its own similar property or similar property held in escrow for the account of others (whichever degree of care is higher)others, and shall will not be held to any higher standard of care under this Agreement;
(v) the Escrow Agent makes no representation as to the validity, value, genuineness or collectibility of any security or other document or instrument held by or delivered to it;
(vi) the Escrow Agent shall will not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder;
(viivi) provided that it is not grossly negligent in doing so, the Escrow Agent shall will be entitled to rely upon any order, judgment, Direction Letter, certification, instruction, notice or other writing delivered to it in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or service thereof; the Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any Person person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; the Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement and shall will not be liable for any action taken or omitted in accordance with such advice;
(viii) notwithstanding anything advice so long as such action or omission does not constitute gross negligence or willful misconduct. 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 be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Fund. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith except to the contraryextent that a final adjudication of acourt of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either of the Parties. The Escrow Agent may interplead all of the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The parties hereto other than the Escrow Agent agree to pursue any redress or recourse in connection with any dispute without making the Escrow Agent a party to the same. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. No party to this Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Escrow Agreement because of, acts of God, fire, war, terrorism, floods, strikes, electrical outages, equipment or transmission failure, or other causes reasonably beyond its control.
(vii) the Escrow Agent will be under no duty to monitor or enforce compliance by any Person Buyer or Seller with any term or provision of the Purchase Agreement;
(ixviii) if the Escrow Agent shall will be uncertain as to its duties or rights hereunder or shall will receive instructions from any of the undersigned with respect to any property held by it in escrow pursuant to this Agreement the Escrow Fund which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of this Agreement, the Escrow Agent shall will be entitled to refrain from taking any action until it shall will be directed otherwise by a Direction Letter or Final Order;
(xix) if the Escrow Agent becomes involved in is made a party to any litigation in connection with this Agreement, it shall will have the right to retain counsel, and shall will be reimbursed for all reasonable costs and expenses, including its reasonable attorneys' ’ fees and expenses, incurred in connection therewith; subject to the provisions of Section 4(a)(iii) hereof, such costs and expenses shall will be paid one-half by the Company, Buyer and one-half by Seller (provided that the Escrow Agent shall will not be entitled to any reimbursement for its fees and expenses incurred as a result of its gross negligence or willful misconduct;
(xi) the Escrow Agent shall not be liable hereunder for, and, subject to the provisions of Section 4(a)(iii) hereof, the Company agrees to indemnify the Escrow Agent for and hold it harmless as to, any loss, liability or expense, including attorneys' fees and expenses, paid or incurred by the Escrow Agent in connection with the Escrow Agent's duties under this Agreement, unless such loss, liability or expense was paid or incurred in violation of Section 6(b)(ii) or as a result of the Escrow Agent's gross negligence or willful misconduct;
(xii) the Escrow Agent may, in its sole and absolute discretion, resign in a manner consistent with Section 6(c) hereof); and
(xiii) the Company, the Investor and the Shareholder may jointly remove and replace the Escrow Agent at any time, subject to the provisions of Section 6(c).
Appears in 1 contract
Samples: Share Purchase Agreement (KFX Inc)
Protection of Escrow Agent. In consideration of this escrow by the Escrow Agent, the The parties hereto agree that:
(i) the Company, the Shareholder and the Investor may examine the Escrow Funds at any time during regular business hours and upon prior written notice at the office of the Escrow Agent and the Escrow Agent shall periodically provide a written accounting of the Escrow Funds to the Company, the Shareholder and the Investor in accordance with the Escrow Agent's standard practices, but in no event less often than monthly;
(ii) the a. Escrow Agent's duties and responsibilities as escrow agent in connection with this Agreement shall be purely ministerial and shall be limited to those expressly set forth in this Agreement. Escrow Agent is not a principal, participant or beneficiary in any transaction underlying this Agreement and shall have no duty to inquire beyond the terms and provisions hereof. Escrow Agent shall have no responsibility or obligation of any kind in connection with this Agreement or the Escrow Deposits, other than to receive, hold, invest, reinvest and deliver the Escrow Deposits as herein provided. Without limiting the generality of the forgoing, it is hereby expressly agreed and stipulated by the parties hereto that Escrow Agent shall not be subject torequired to exercise any discretion hereunder and shall have no investment or management responsibility and, nor obliged accordingly, shall have no duty to recognizeor liability for its failure to provide investment recommendations or investment advice to any of the other parties to this Agreement. Escrow Agent shall not be liable for any error in judgment, any other agreement betweenact or omission, any mistake of law or fact, or direction for anything it may do or instruction ofrefrain from doing in connection herewith, except for, subject to paragraph d. hereinbelow, its own willful misconduct or gross negligence (it being understood that gross negligence shall include loss (other than investment loss) by Escrow Agent of all or any part of the items escrowed pursuant to this Agreement or all failure to follow any investment or other instructions of any of the other parties hereto provided herein). It is the intention of the parties hereto even though reference thereto may that Escrow Agent shall never be made herein; providedrequired to use, however, that this Agreement may be amended at any time advance or times risk its own funds or otherwise incur financial liability in accordance with Section 8(g) below;
(iii) subject to Sections 3(f) and 7(e) hereof, no assignment of the interest performance of any of its duties or the parties or their successors shall be binding upon the Escrow Agent unless exercise of any of its rights and until written evidence of such assignment shall be filed with and accepted by the Escrow Agentpowers hereunder;
(iv) the Escrow Agent shall exercise the same degree of care toward the Escrow Funds as it exercises toward its own similar property or similar property held in escrow for the account of others (whichever degree of care is higher), and shall not be held to any higher standard of care under this Agreement;
(v) b. the Escrow Agent makes no representation as to the validity, value, genuineness or collectibility of any security or other document or instrument held by or delivered to it;
(vi) c. the Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, to any securities or other property deposited hereunder;
(vii) provided that it is not grossly negligent in doing so, the Escrow Agent shall be entitled to rely upon any order, judgment, Direction Letter, certification, instruction, notice or other writing delivered to it in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or service thereof; the d. Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; the Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement rely on, and shall not be liable for acting or refraining from acting upon, any action taken written notice, instruction or omitted in accordance with such advice;
(viii) notwithstanding anything herein request or other paper furnished to it hereunder or pursuant hereto and reasonably believed by it to have been signed or presented by the contrary, the proper party or parties. Escrow Agent shall be under responsible for holding, investing, reinvesting and disbursing the Escrow Deposits pursuant to this Agreement; provided, however, that in no duty event shall Escrow Agent be liable for any lost profits, lost savings or other special, exemplary, consequential or incidental damages in excess of Escrow Agent's fee hereunder (except those arising from its own willful misconduct or gross negligence) and provided, further, that Escrow Agent shall have no liability for any loss arising from any cause beyond its control including, but not limited to, the following: (a) acts of God, force majeure, including, without limitation, war (whether or not declared or existing), revolution, insurrection, riot, civil commotion, accident, fire explosion, stoppage of labor, strikes and other differences with employees; (b) the act, failure or neglect of any other party to monitor this Agreement; (c) any delay, error, omission or enforce compliance by default of any Person with mail, courier, telegraph, cable and wireless agency or operator; or (d) the acts or edicts of any term government or provision governmental agency or other group or entity exercising governmental powers. Escrow Agent is not responsible or liable in any manner whatsoever for the (i) sufficiency, correctness, genuineness or validity of the Purchase Agreementsubject matter of this Agreement or any part hereof , (ii) transaction or transactions requiring or underlying the execution of this Agreement or the form or execution hereof or (iii) identity or authority of any person executing this Agreement or any part hereof, or depositing the Escrow Deposits;
(ix) e. if the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions from any of the undersigned with respect to any property held by it in escrow pursuant to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of this AgreementAgreement or any instructions received from any other of the undersigned, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise by the parties pursuant to an amendment or waiver to this Agreement in accordance with Section 4(g) below, or by order of a Direction Letter or Final Ordercourt of competent jurisdiction specified in Section 4(c) below;
(x) f. should any controversy arise involving the parties hereto or any of them or any other person, firm or entity with respect to this Agreement or the Escrow Deposits, or should a substitute escrow agent fail to be designated as provided in paragraph g., or if Escrow Agent should be in doubt as to what action to take, the Escrow Agent becomes shall have the right, but not the obligation, to institute a petition for interpleader in any court of competent jurisdiction specified in Section 4(c) below to determine the rights of the parties hereto. Should a petition for interpleader be instituted, or should the Escrow Agent be threatened with, or become involved in in, litigation or binding arbitration in connection with this Agreement, it shall have the right to retain counsel, and shall be reimbursed for all reasonable costs and expenses, including its reasonable attorneys' fees and expenses, incurred in connection therewith; subject to the provisions of Section 4(a)(iii) hereof, such costs and expenses shall be paid by the Company, provided that Agreement or the Escrow Agent shall not be entitled Deposits, then the other parties agree, jointly and severally, to any reimbursement for its fees and expenses incurred as a result of its gross negligence or willful misconduct;
(xi) the Escrow Agent shall not be liable hereunder for, and, subject to the provisions of Section 4(a)(iii) hereof, the Company agrees to indemnify reimburse the Escrow Agent for and hold it harmless as to, any loss, liability or expense, including attorneys' its reasonable attorney's fees and any and all other reasonable out of pocket expenses, paid or losses, costs and damages incurred by the Escrow Agent in connection with such threatened or actual litigation prior to any disbursement hereunder (subject, as to MAXXAM, NL and the Escrow Agent's duties under this AgreementCMRT, unless to the Allocation Provision, as such loss, liability or expense was paid or incurred term is defined in violation of Section 6(b)(ii3(h) or as a result of the Escrow Agent's gross negligence or willful misconductbelow);
(xii) the Escrow Agent may, in its sole and absolute discretion, resign in a manner consistent with Section 6(c) hereof; and
(xiii) the Companyg. MAXXAM, the Investor CMRT and the Shareholder NL may jointly remove and replace the Escrow Agent at any time. If the Escrow Agent shall be removed as escrow agent by the parties or shall resign or otherwise cease to act as escrow agent, subject MAXXAM, the CMRT and NL shall mutually agree upon a successor which successor shall be deemed to be the Escrow Agent for all purposes of this Agreement. If a successor Escrow Agent has not been appointed and accepted such appointment by the end of the thirty (30) day period following such removal, resignation or cessation, the Escrow Agent may apply to any court in which it is permitted to commence litigation pursuant to Section 4(c), for the appointment of a successor Escrow Agent and deposit the Escrow Deposits with the then chief or presiding judge of such court (and upon so depositing such property and filing its complaint in interpleader, it shall be relieved of all liability under the terms hereof as to the provisions property so deposited), and the reasonable costs and expenses and reasonable attorneys' fees which the Escrow Agent incurs in connection with such a proceeding shall be borne one-half by MAXXAM, one-quarter by the CMRT, and one-quarter by NL. The removal, resignation or other ceasing to act as escrow agent by the Escrow Agent or any successor thereto shall have no effect on this Agreement or any of the rights of the parties hereunder, all of which shall remain in full force and effect;
h. the other parties to this Agreement hereby jointly and severally indemnify Escrow Agent, its officers, directors, partners, employees and agents (each herein called an "Indemnified Party") against, and hold each Indemnified Party harmless from, any and all expenses, including, without limitation, reasonable attorneys' fees and court costs, losses, costs, damages and claims, including but not limited to, costs of investigation, litigation and arbitration, tax liability and loss on investments suffered or incurred by any Indemnified Party in connection with or arising from or out of this Agreement, except such acts or omissions as may result from the willful misconduct or gross negligence of such Indemnified Party; provided that the foregoing joint and several indemnity shall not affect the liability of MAXXAM, the CMRT and NL, as among themselves, for the specified items for which the Escrow Agent is to be indemnified (which in the absence of fault by any of MAXXAM, the CMRT and/or NL, shall be one-half to MAXXAM, one-fourth to the CMRT and one- fourth to NL, and in the presence of fault by any of MAXXAM, the CMRT and/or NL, shall be as any court of competent jurisdiction specified in Section 6(c4(c) decides; the "Allocation Provision"). IT IS EXPRESS INTENT OF EACH OTHER PARTY TO THIS AGREEMENT TO INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM THEIR OWN NEGLIGENT ACTS OR OMISSIONS WHERE PERMITTED TO DO SO BY APPLICABLE LAW;
i. MAXXAM, as to one half, the CMRT, as to one quarter, and NL, as to one quarter, hereby agree, upon execution by Escrow Agent of this Agreement, to pay Escrow Agent (A) an annual fee of $4,000.00 for its services hereunder in accordance with the fee schedule attached hereto, the first payment to be paid on the date hereof and successive payments being due on each anniversary date hereof, such fees being completely earned when due; and (B) all of Escrow Agent's out-of-pocket expenses reasonably incurred in connection with the performance of its duties and enforcement of its rights hereunder and otherwise in connection with the preparation, operation, administration and enforcement of this Agreement, including, without limitation, reasonable attorneys' fees, brokerage costs and related expenses incurred by Escrow Agent; and
j. Escrow Agent may consult with its counsel or other counsel satisfactory to it concerning any question relating to its duties or responsibilities hereunder or otherwise in connection herewith, and shall not be liable for any action taken, suffered or omitted by it in good faith upon the advice of such counsel.
Appears in 1 contract
Samples: Escrow Agreement (Maxxam Inc)
Protection of Escrow Agent. In consideration of this escrow by the Escrow Agent, the parties hereto agree that:
(i) the Company, the Shareholder and the Investor may examine the Escrow Funds at any time during regular business hours and upon prior written notice at the office of the Escrow Agent and the Escrow Agent shall periodically provide a written accounting of the Escrow Funds to the Company, the Shareholder and the Investor in accordance with the Escrow Agent's standard practices, but in no event less often than monthly;
(ii) the Escrow Agent's ’s duties and responsibilities shall be limited to those expressly set forth in this Agreement, and the Escrow Agent shall not be subject to, nor obliged to recognize, any other agreement between, or direction or instruction of, any or all of the parties hereto even though reference thereto may be made herein; provided, however, that this Agreement may be amended at any time or times in accordance with Section 8(g8(f) belowhereof;
(iiiii) subject to Sections 3(f3(b) and 7(e8(e) hereof, no assignment of the interest of any of the parties or their successors shall be binding upon the Escrow Agent unless and until written evidence of such assignment in form satisfactory to Escrow Agent shall be filed with and accepted by the Escrow Agent;
(iviii) the Escrow Agent shall exercise the same degree of care toward the Escrow Funds Fund as it exercises toward its own similar property or similar property held in escrow for the account of others (whichever degree of care is higher), and shall not be held to any higher standard of care under this Agreement;
(v) the Escrow Agent makes no representation as to the validity, value, genuineness or collectibility of any security or other document or instrument held by or delivered to it;
(viiv) the Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder;
(viiv) provided that it is not grossly negligent in doing so, the Escrow Agent shall be entitled to rely upon any order, judgment, Direction Letter, certification, instruction, notice or other writing delivered to it in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or service thereof; the Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any Person person or entity purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; the Escrow Agent may act pursuant to the advice of counsel chosen by it 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;
(viii) notwithstanding anything herein to the contrary, the Escrow Agent shall be under no duty to monitor or enforce compliance by any Person with any term or provision of the Purchase Agreement;
(ixvi) if the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions from any of the undersigned with respect to any property held by it in escrow pursuant to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of this Agreement, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise by a Direction Letter or Final Order;
(xvii) if the Escrow Agent becomes involved in litigation in connection with this Agreement, it shall have the right to retain counsel, and shall be reimbursed for all reasonable costs and expenses, including its reasonable attorneys' ’ fees and expenses, incurred in connection therewith; subject to the provisions of Section 4(a)(iii) hereof, such costs and expenses shall be paid paid, one-half by the CompanyShareholders (pro rata based upon their respective Pro Rata Portion) and one-half by BSVN; provided, provided that the Escrow Agent shall not be entitled to any reimbursement for its fees and expenses incurred as a result of its gross negligence or willful misconductmisconduct and, in the case of litigation between the Shareholders and the Escrow Agent, the Escrow Agent’s right to reimbursement from the Shareholders shall be contingent upon a written finding of an arbitrator pursuant to Section 8(c) hereof or, if such Section 8(c) is found not to be enforceable, an order of a court of competent jurisdiction, that the Escrow Agent acted reasonably with respect to the matter which is the subject of such litigation;
(xiviii) the Escrow Agent shall not be liable hereunder for, and, subject and BSVN and the Shareholders agree severally (and not jointly) (one-half to be borne by BSVN and the provisions of Section 4(a)(iiiremainder to be borne severally by the Shareholders pro rata based upon their respective Pro Rata Portion) hereof, the Company agrees to indemnify the Escrow Agent for and hold it harmless as to, any loss, liability or expense, including reasonable attorneys' ’ fees and expenses, paid or incurred by the Escrow Agent in connection with the Escrow Agent's ’s duties under this Agreement, unless such loss, liability or expense was paid or incurred (x) without first obtaining the consent of BSVN and the Representative pursuant to the provisions contained in violation the last sentence of Section 6(b)(ii6(b) hereof or (y) as a result of the Escrow Agent's ’s gross negligence or willful misconduct;
(xiiix) the Escrow Agent may, in its sole and absolute discretion, resign in a manner consistent with Section 6(c) hereof; and
(xiiix) the Company, the Investor BSVN and the Shareholder Representative may jointly remove and replace the Escrow Agent at any time, subject to the provisions of Section Sections 6(c)) and 6(d) hereof.
Appears in 1 contract
