PROVISIONS RELATING TO THE ESCROW AGENT. (a) The Escrow Agent shall have no duties or responsibilities whatsoever with respect to the Escrow Fund except as are specifically set forth herein. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of the terms and conditions of, any other agreement, instrument or document in connection herewith. The Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to any written notice, instrument, request, consent, certificate, document, (b) The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence. (c) Each of the Buyer and Seller agree to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's action, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any claims, costs, payments, and expenses (including the fees and expenses of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligence. (d) The Escrow Agent may resign as such following the giving of 60 days' prior written notice to Buyer and Seller. Similarly, the Escrow Agent may be removed and replaced following the giving of 60 days' prior written notice to the Escrow Agent jointly by Buyer and Seller. In either event, the duties of the Escrow Agent shall terminate 60 days after the date of such notice (or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund to the successor Escrow Agent; and the Escrow Agent shall then deliver the balance of the Escrow Fund then in its possession to such a successor Escrow Agent as shall be appointed by Buyer and the Seller as evidenced by a written notice filed with the Escrow Agent. If Buyer and Seller are unable to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow Fund, the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement. (e) The Escrow Agent shall not be bound in any way by any agreement, other than this Escrow Agreement. A copy of the Merger Agreements, together with the Schedules and Exhibits (f) The Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the Escrow Fund or under this Escrow Agreement and none of the costs or expenses or any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations of Buyer or Seller, as the case may be, and shall not be satisfied in any way by the Escrow Fund.
Appears in 1 contract
PROVISIONS RELATING TO THE ESCROW AGENT. (a) The Escrow Agent shall have no duties or responsibilities whatsoever with respect to the Escrow Fund except as are specifically set forth herein. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of the terms and conditions of, any other agreement, instrument or document in connection herewithherewith other than Article VIII of the Merger Agreement, which is incorporated herein by reference. The Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to any written notice, instrument, request, consent, certificate, document,, letter, telegram, opinion, order, resolution or other writing hereunder without being required to determine the authenticity of such document, the correctness of any fact stated therein, the propriety of the service thereof or the capacity, identity or authority of any party purporting to sign or deliver such document. The Escrow Agent shall have no responsibility for the contents of any such writing contemplated herein and may rely without any liability upon the contents thereof.
(b) The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each of the Buyer Acquiror and Seller agree Shareholder's Representative agrees to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's action, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any claims, costs, payments, and expenses (including the fees and expenses of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligence.
(d) The Escrow Agent may resign as such following the giving of 60 days' prior written notice to Buyer Acquiror and Sellerthe Shareholders' Representative. Similarly, the Escrow Agent may be removed and replaced following the giving of 60 days' prior written notice to the Escrow Agent jointly by Buyer Acquiror and Sellerthe Shareholders' Representative. In either event, the duties of the Escrow Agent shall terminate 60 days after the date of such notice (or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund to the successor Escrow Agent; and the Escrow Agent shall then deliver the balance of the Escrow Fund then in its possession to such a successor Escrow Agent as shall be appointed by Buyer Acquiror and the Seller Shareholders' Representative as evidenced by a written notice filed with the Escrow Agent. If Buyer Acquiror and Seller the Shareholders' Representative are unable to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow Fund, the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement.
(e) The Escrow Agent shall not be bound in any way by any agreement, other than this Escrow Agreement. A copy of the Merger AgreementsAgreement, together with the Schedules and ExhibitsExhibits thereto, has been provided to the Escrow Agent in connection with the execution of this Escrow Agreement and the Escrow Agent understands that the terms of the Shareholders' indemnification obligations are set forth in Article VIII of the Merger Agreement. The Merger Agreement forms an integral part of this Escrow Agreement and, therefore, Article VIII thereof is hereby incorporated by reference herein.
(f) The Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the Escrow Fund or under this Escrow Agreement and none of the costs or expenses or any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations of Buyer Acquiror or Sellerthe Shareholders' Representative, as the case may be, and shall not be satisfied in any way by the Escrow Fund.
Appears in 1 contract
PROVISIONS RELATING TO THE ESCROW AGENT. (a) The Escrow Agent shall have no duties or responsibilities whatsoever with respect agrees to hold the Escrow Fund except as are specifically set forth herein. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of Deed under the terms and conditions ofof this Escrow Agreement and to perform the acts and duties imposed upon it hereby. Notwithstanding anything herein to the contrary, any other agreement, instrument or document in connection herewith. The the Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to upon any written notice, instrument, request, consent, certificate, document,
(b) instructions given jointly by SLPS and Owner. The Escrow Agent shall not be personally liable for any action act taken or omitted by it hereunder if taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with in the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice exercise of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each of the Buyer and Seller agree to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's action, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any claims, costs, payments, and expenses (including the fees and expenses of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligence.
(d) reasonable judgment. The Escrow Agent may resign as such following the by giving of 60 days' thirty (30) days prior written notice to Buyer and Sellerall parties hereto. Similarly, the Escrow Agent may be removed and replaced following the by giving of 60 days' thirty (30) days prior written notice to the Escrow Agent jointly by Buyer SLPS and SellerOwner. In either event, the duties of the Escrow Agent shall terminate 60 thirty (30) days after the date of such notice (or at such earlier date as may be mutually agreeable), except for its Escrow Agent’s obligations to hold and deliver the Escrow Fund Deed to the successor Escrow Agent; , and the Escrow Agent shall then deliver the balance of the Escrow Fund then in its possession to such a successor Escrow Agent as shall be appointed by Buyer SLPS and the Seller Owner as evidenced by a written notice filed with the Escrow Agent. If Buyer SLPS and Seller Owner are unable to agree upon a successor Escrow Xxxxxx Agent by following the effective date of such the notice of resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Xxxxxx Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow FundDeed, the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement.
(e) The Escrow Agent shall not be bound in any way by any agreement, other than this Escrow Agreement. A copy of the Merger Agreements, together with the Schedules and Exhibits
(f) The Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the Escrow Fund or under this Escrow Agreement and none of the costs or expenses or any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations of Buyer or Seller, as the case may be, and shall not be satisfied in any way by the Escrow Fund.
Appears in 1 contract
Samples: Option Contract
PROVISIONS RELATING TO THE ESCROW AGENT. (a) The Escrow Agent shall have no duties or responsibilities whatsoever with respect agrees to hold the Escrow Fund except as are specifically set forth herein. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of Funds under the terms and conditions ofof this Escrow Agreement and to perform the acts and duties imposed upon it hereby. If at any time in the performance of its duties hereunder it is necessary for the Escrow Agent to receive, accept or act upon any other agreementnotice or writing purported to have been executed or issued by or on behalf of the Purchaser or the Stockholder, instrument it shall not be necessary for the Escrow Agent to ascertain whether or document in connection herewith. The not the person or persons who have executed, signed or otherwise issued or authenticated said writing are authorized so to execute, sign or otherwise issue or authenticate said writing, or that they are the same persons named therein or otherwise to pass upon any requirements of such instruments that may be essential for their validity.
(b) Notwithstanding anything herein to the contrary, the Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to upon any written notice, instrument, request, consent, certificate, document,instructions given jointly by the Purchaser and the Stockholder.
(bc) The Escrow Agent shall not be personally liable for any action act taken or omitted by it hereunder if taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with in the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice exercise of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each of the Buyer and Seller agree to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's action, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any claims, costs, payments, and expenses (including the fees and expenses of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligencebest judgment.
(d) The Escrow Agent may resign as such following the giving of 60 30 days' prior written notice to Buyer the Purchaser and Sellerthe Stockholder. Similarly, the Escrow Agent may be removed and replaced following the giving of 60 30 days' prior written notice to the Escrow Agent jointly by Buyer the Purchaser and Sellerthe Stockholder. In either event, the duties of the Escrow Agent shall terminate 60 30 days after the date of such notice (or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund Funds to the successor Escrow Agent; and the Escrow Agent shall then deliver the balance of the Escrow Fund Funds then in its possession to such a successor Escrow Agent as shall be appointed by Buyer the Purchaser and the Seller Stockholder as evidenced by a written notice filed with the Escrow Agent. If Buyer the Purchaser and Seller the Stockholder are unable to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow FundFunds, the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement.
(e) The Escrow Agent shall not be bound in any way by any agreement, other than this Escrow Agreement. A copy of the Merger Agreements, together with the Schedules and Exhibits
(f) The Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the Escrow Fund Funds or under this Escrow Agreement and none of the costs or expenses or of any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations paid out of Buyer the Escrow Funds or Sellerby the Purchaser, as the case may be, and shall not be satisfied in any way by the Escrow Fund.
Appears in 1 contract
Samples: Escrow Agreement (BMC Software Inc)
PROVISIONS RELATING TO THE ESCROW AGENT. (a) 10.1 The Escrow Agent shall be indemnified for all legal costs incurred by it in seeking any counsel in relation to any adverse third party claim to the Escrow Funds. The Escrow Agent shall have no duties full and complete authorization and protection for any action taken or responsibilities whatsoever suffered by it hereunder in good faith and in accordance with respect to the Escrow Fund except as are specifically set forth hereinopinion of such counsel. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of the terms and conditions of, any other agreement, instrument or document in connection herewith. The Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to any written notice, instrument, request, consent, certificate, document,
(b) The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake mistakes of fact or error of judgment judgment, or for any acts or omissions of any kind except for unless caused by its own willful misconduct actual fraud, gross negligence or gross negligencewilful breach of its duties as provided herein.
(c) Each 10.2 Notwithstanding any provisions contained herein to the contrary, in the event of any adverse third party claim to the Buyer and Seller agree to jointly and severally indemnify Escrow Funds, the Escrow Agent and may, in its employeessole discretion, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's action, and file an action in interpleader to resolve the parties agree jointly and severally to indemnify the said disagreement. The Escrow Agent and hold it harmless against any claims, costs, payments, and expenses shall be indemnified for all legal costs (including as determined by the fees and expenses of counselcourt) and all liabilities incurred by it in connection with the performance any such interpleader action and shall be fully protected in suspending all or part of its duties actions hereunder until a final judgment in the interpleader action is resolved.
10.3 CG and them hereunder, except in either case the relevant Customer shall jointly and severally reimburse the Escrow Agent for claims, costs, payments and all reasonable out-of-pocket expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting in connection with any of the matters set out in Clauses 10.1 and 10.2 occurring in relation to this Agreement or any Note. Unless and until the Escrow Agent is determined by a court of competent jurisdiction to have discharged any of its duties hereunder in a grossly negligent manner or to have been guilty of wilful misconduct with regard to any of its duties hereunder. CG and the relevant Customer shall jointly and severally indemnify and hold the Escrow Agent harmless from any and all claims, liabilities, losses, actions, suits, proceedings at law or in equity, or any other expenses, fees or charges of any nature whatsoever, which it may incur or with which it may be threatened by reason of its own willful misconduct acting as Escrow Agent hereunder and in connection therewith, to indemnify the Escrow Agent against any and all expense
10.4 In the event that a Customer fails to pay any amount due and payable to the Escrow Agent hereunder by the due date, the Escrow Agent shall by notice in writing, inform the relevant party of the outstanding amounts and if not paid within 7 days thereafter, the Escrow Agent shall be entitled to set off and deduct, and the Parties hereby irrevocably and unconditionally authorise the Escrow Agent to set off and deduct, any amount due and payable to it hereunder (including any Escrow Agent’s charges which remain unpaid and whether such amount is due and payable to the Escrow Agent by way of indemnity or gross negligenceotherwise) from the relevant Customer’s e-Wallet prior to release of the same in accordance with the provisions hereof. The Escrow Agent’s determination of any amount due and payable to it hereunder shall be conclusive and binding for all purposes.
(d) The 10.5 If by operation of applicable Laws or for any other reason, the Escrow Agent may resign as such following the giving of 60 days' prior written notice is unable to Buyer and Seller. Similarlyperform its obligations hereunder or under any Note, the Escrow Agent may resign at any time upon giving CG [forty-five (45)] days’ notice in writing to that effect. In such event a successor shall be removed such person, firm or corporation as shall be mutually selected by the Escrow Agent and replaced following CG. If no successor is appointed and acting hereunder within [forty-five (45)] days of notice given by the giving Escrow Agent as aforesaid, the Escrow Agent may, as an alternative to delivery into court, retain all funds in the e-Wallet but thereupon shall be discharged from all of 60 days' prior written its duties and responsibilities hereunder save and except to hold the funds in the e-Wallet for delivery to such new person or otherwise as CG shall by notice in writing to the Escrow Agent jointly direct or as the Escrow Agent shall be directed by Buyer a court of competent jurisdiction.
10.6 Any document to be submitted to the Escrow Agent hereunder by any Issuer, Investor or CG in writing shall be signed by such party and/or their respective solicitors and/or authorised signatories (“Authorised Signatories”) of the relevant party, as the case may be. It shall be the duty of each of the Parties to provide the Escrow Agent from time to time with the names and Sellerspecimen signatures of their
10.7 The Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine and shall have no obligation to verify the authenticity of the same; may assume the validity and accuracy of any statements or assertions contained in such writing or instrument; and may assume that any person purporting to give any writing, notice, advice or instruction in connection with the provisions hereof has been duly authorized to do so. In either eventThe Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any written instructions delivered to it; nor as to the identity, authority or rights of any person executing the same.
10.8 The Escrow Agent may act in reliance upon any instructions received by it from CG, any Issuer or any Investor through the Platform and shall have no obligation to verify the authenticity of the same; may assume the validity and accuracy of any such instructions; and may assume that any person purporting to give any writing, notice, advice or instruction in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any instructions delivered to it through the Platform; nor as to the identity, authority or rights of any person executing the same and shall be entitled to assume that all instructions given or delivered to the Escrow Agent through the Platform have been duly and properly delivered in the absence of any notification to the contrary.
10.9 The duties of the Escrow Agent shall terminate 60 days after the date of such notice (or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund limited to the successor duties described herein and in a Note. The Escrow Agent; Agent undertakes to perform only such duties as are expressly set forth herein or in a Note, and no other duties or obligations of the Escrow Agent shall then deliver be implied by virtue of this Agreement.
10.10 Except for its acts of actual fraud, gross negligence or wilful breach of its duties as provided herein, the balance Escrow Agent will not be liable for any act done or
10.11 Each of CG and the relevant Customer covenants with the Escrow Agent that it will undertake all Reporting Requirements applicable to CG or the Customer respectively in connection with the use of the Escrow Fund then in its possession to such a successor Escrow Agent as Services and it shall not be appointed by Buyer and the Seller as evidenced by a written notice filed with the Escrow Agent. If Buyer and Seller are unable to agree upon a successor Escrow Agent by the effective date of such resignation duty or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance responsibility of the Escrow Fund, Agent whatsoever and the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement.
(e) The Escrow Agent shall not be bound or obliged in any way to perform any such Reporting Requirements to the fullest extent permitted by any agreement, other than this Escrow Agreement. A copy the laws of the Merger AgreementsRepublic of Singapore. If required, together each Party shall appoint an agent to comply with the Schedules Reporting Requirements in accordance with the Laws applicable to him and Exhibits
(f) will inform the Escrow Agent of such appointment. The Escrow Agent shall be under no duty obligation whatsoever to institute or defend make any arbitration or legal proceeding such appointment nor is the Escrow Agent obliged to ensure that the Reporting Requirements are complied with respect in accordance with applicable Law. Notwithstanding the foregoing, in the event that the Escrow Agent decides in its sole and absolute discretion to perform and/or to appoint an agent to perform such Reporting Requirements, the Escrow Agent shall be indemnified out of the funds in the relevant Customer’s e-Wallet. The Escrow Agent shall however at all times comply with all Reporting Requirements under Singapore law relating to the Escrow Fund or under this Escrow Agreement and none holding of the costs Escrow Funds in Singapore.
10.12 (Where the Customer is an Investor) the Investor shall indemnify, defend and hold harmless the Escrow Agent and its officers and keep the Escrow Agent, its members, employees, officers, directors, representatives, agents, parent(s), subsidiaries, affiliates, investors, shareholders, administrators, predecessor and successor entities, and assigns, indemnified from and against any and all claims, damages, costs, direct, indirect or consequential losses, loss of profit, expenses (including reasonable legal fees) or any such proceeding shall be borne liability incurred by the Escrow Agent. The costs and expenses of any such proceeding shall be borne Agent as decided by the arbitrators a result of, arising directly or court and shall be direct obligations of Buyer indirectly out of, or Seller, as the case may be, and shall not be satisfied in any way by connection with the Escrow Fund.Agent carrying
Appears in 1 contract
Samples: Terms and Conditions
PROVISIONS RELATING TO THE ESCROW AGENT. (a) The Escrow Agent shall have no duties or responsibilities whatsoever with respect to the Escrow Fund except as are specifically set forth herein. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of the terms and conditions of, any other agreement, instrument or document in connection herewith. The Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to any written notice, instrument, request, consent, certificate, document,, letter, telegram, opinion, order, resolution or other writing hereunder without being required to determine the authenticity of such document, the correctness of any fact stated therein, the propriety of the service thereof or the capacity, identity or authority of any party purporting to sign or deliver such document. The Escrow Agent shall have no responsibility for the contents of any such writing contemplated herein and may rely without any liability upon the contents thereof.
(b) The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each of the Buyer Acquiror and Seller agree Shareholder's Representative agrees to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's action, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any claims, costs, payments, and expenses (including the fees and expenses of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligence.
(d) The Escrow Agent may resign as such following the giving of 60 days' prior written notice to Buyer Acquiror and Sellerthe Shareholders' Representative. Similarly, the Escrow Agent may be removed and replaced following the giving of 60 days' prior written notice to the Escrow Agent jointly by Buyer Acquiror and Sellerthe Shareholders' Representative. In either event, the duties of the Escrow Agent shall terminate 60 days after the date of such notice (or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund to the successor Escrow Agent; and the Escrow Agent shall then deliver the balance of the Escrow Fund then in its possession to such a successor Escrow Agent as shall be appointed by Buyer Acquiror and the Seller Shareholders' Representative as evidenced by a written notice filed with the Escrow Agent. If Buyer Acquiror and Seller the Shareholders' Representative are unable to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow Fund, the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement.
(e) The Escrow Agent shall not be bound in any way by any agreement, other than this Escrow Agreement. A copy of the Merger AgreementsAgreement, together with the Schedules and ExhibitsExhibits thereto, has been provided to the Escrow Agent in connection with the execution of this Escrow Agreement and the Escrow Agent understands that the terms of the Shareholders' indemnification obligations are set forth in Article VIII of the Merger Agreement. The Merger Agreement forms an integral part of this Escrow Agreement and, therefore, Article VIII thereof is hereby incorporated by reference herein.
(f) The Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the Escrow Fund or under this Escrow Agreement and none of the costs or expenses or any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations of Buyer Acquiror or Sellerthe Shareholders' Representative, as the case may be, and shall not be satisfied in any way by the Escrow Fund.
Appears in 1 contract
PROVISIONS RELATING TO THE ESCROW AGENT. (a) The Escrow Agent shall have no duties or responsibilities whatsoever with respect agrees to hold the Escrow Fund except as are specifically set forth herein. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of Funds under the terms and conditions ofof this Escrow Agreement and to perform the acts and duties imposed upon it hereby. If at any time in the performance of its duties hereunder it is necessary for the Escrow Agent to receive, accept or act upon any other agreementnotice or writing purported to have been executed or issued by or on behalf of the Purchaser or the Stockholder, instrument it shall not be necessary for the Escrow Agent to ascertain whether or document in connection herewith. The not the person or persons who have executed, signed or otherwise issued or authenticated said writing are authorized so to execute, sign or otherwise issue or authenticate said writing, or that they are the same persons named therein or otherwise to pass upon any requirements of such instruments that may be essential for their validity.
(b) Notwithstanding anything herein to the contrary, the Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to upon any written notice, instrument, request, consent, certificate, document,instructions given jointly by the Purchaser and the Stockholder.
(bc) The Escrow Agent shall not be personally liable for any action act taken or omitted by it hereunder if taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with in the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice exercise of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each of the Buyer and Seller agree to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's action, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any claims, costs, payments, and expenses (including the fees and expenses of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligencebest judgment.
(d) The Escrow Agent may resign as such following the giving of 60 30 days' prior written notice to Buyer the Purchaser and Sellerthe Stockholder. Similarly, the Escrow Agent may be removed and replaced following the giving of 60 30 days' prior written notice to the Escrow Agent jointly by Buyer the Purchaser and Sellerthe Stockholder. In either event, the duties of the Escrow Agent shall terminate 60 30 days after the date of such notice (or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund Funds to the successor Escrow Agent; and the Escrow Agent shall then deliver the balance of the Escrow Fund Funds then in its possession to such a successor Escrow Agent as shall be appointed by Buyer the Purchaser and the Seller Stockholder as evidenced by a written notice filed with the Escrow Agent. If Buyer the Purchaser and Seller the Stockholder are unable to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow FundFunds, the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement.
(e) The Escrow Agent shall not be bound in any way by any agreement, other than this Escrow Agreement. A copy of the Merger Agreements, together with the Schedules and Exhibits
(f) The Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the Escrow Fund Funds or under this Escrow Agreement and none of the costs or expenses or of any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations paid out of Buyer the Escrow Funds or Sellerby the Purchaser, as the case may be, and shall not be satisfied in any way by the Escrow Fund.. ARTICLE 6
Appears in 1 contract
PROVISIONS RELATING TO THE ESCROW AGENT. To induce the Escrow Agent to act hereunder, it is further agreed by AKI and SMI that:
(a) The Escrow Agent shall have no not be under any duty to give the Escrowed Items held by it hereunder any greater degree of care than it gives its own similar property.
(b) This Agreement expressly sets forth all the duties or responsibilities whatsoever of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Fund except as are specifically set forth hereinAgent. The Escrow Agent shall neither not be responsible for or under, nor chargeable with knowledge bound by the provisions of any agreement among the terms and conditions of, any other agreement, instrument or document in connection herewith. The Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to any written notice, instrument, request, consent, certificate, document,parties hereto except this Agreement.
(bc) The Escrow Agent shall not be liable for any action taken act or omitted by it in good faith and reasonably believed by it to be authorized hereby omission under this Agreement unless his act or with the rights omission constitutes gross negligence or powers conferred willful misconduct. Other than claims based upon it hereunder, nor for action taken such gross negligence or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of willful misconduct that are successfully asserted against the Escrow Agent's own choosing), and the other parties hereto shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each of the Buyer and Seller agree to jointly and severally indemnify and hold harmless the Escrow Agent from and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's actionlosses, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any liabilities, claims, costsactions, paymentsdamages and expenses, and expenses (including the reasonable attorneys' fees and expenses disbursements, arising out of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligencethis Agreement.
(d) The Escrow Agent may resign as such following shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the giving authenticity or the correctness of 60 days' prior written notice to Buyer and Sellerany fact stated therein or the propriety or validity of the service thereof. Similarly, the The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be removed genuine and replaced following the giving of 60 days' prior written may assume, if in good faith, that any person purporting to give notice or to the Escrow Agent jointly by Buyer and Seller. In either event, the duties of the Escrow Agent shall terminate 60 days after the date of such notice (execute any certification or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund to the successor Escrow Agent; and the Escrow Agent shall then deliver the balance of the Escrow Fund then other document in its possession to such a successor Escrow Agent as shall be appointed by Buyer and the Seller as evidenced by a written notice filed connection with the Escrow Agent. If Buyer and Seller are unable provisions hereof has been duly authorized to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow Fund, the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreementdo so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be bound liable for any action taken or omitted in any way by any agreement, other than this Escrow Agreement. A copy of the Merger Agreements, together good faith and in accordance with the Schedules and Exhibitssuch advice.
(f) The Escrow Agent does not have any interest in the Escrowed Items deposited hereunder and is serving as escrow agent only.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness of any security or other document or instrument held by or delivered to him.
(h) After the Effective Time, AKI and SMI may not, either individually or together, take any action that would have the effect of amending this Agreement or of terminating the Escrow Agent's duties and obligations hereunder (referred to hereinafter as a "termination"), except by jointly petitioning a court of competent jurisdiction for good cause shown. The Escrow Agent may at any time resign by giving written notice of resignation to AKI and SMI (referred to hereinafter as a "resignation"). Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Items to a court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. Such court shall act as successor to the Escrow Agent until such time (if ever) that the court appoints a successor to the Escrow Agent.
(i) In the event that the Escrow Agent is, in good faith, in doubt about what action it should take under no duty to institute this Agreement, or defend if any arbitration adverse claim or legal proceeding demand is made with respect to any of the Escrowed Items, the Escrow Fund Agent shall be entitled to retain any or under this Escrow Agreement and none all of the costs Escrowed Items until the Escrow Agent shall have received a final, non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Items. Upon receiving such a court order, the Escrow Agent shall act promptly in accordance with the order.
(j) AKI and SMI jointly and severally agree to reimburse the Escrow Agent for all of his reasonable expenses, disbursements and advances incurred or expenses made in the performance of his duties hereunder.
(k) AKI and SMI hereby irrevocably (i) submit to the jurisdiction of any California state or federal court sitting in the County of Los Angeles in any action or proceeding arising out of or relating to this Agreement, (ii) agree that all claims with respect to such action or proceeding shall be borne by heard and determined in such California state or federal court, and (iii) waive, to the Escrow Agentfullest extent possible, the defense of an inconvenient forum. The costs AKI and expenses SMI hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided herein, or in such other manner as may be permitted by law, shall be borne as decided by the arbitrators or court valid and shall be direct obligations of Buyer or Seller, as the case may be, and shall not be satisfied in any way by the Escrow Fundsufficient service thereof.
Appears in 1 contract
PROVISIONS RELATING TO THE ESCROW AGENT. (a) The Escrow Agent shall have no duties not be liable for any action or responsibilities whatsoever omission hereunder, except for its own gross negligence or willful misconduct. Further, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Fund except Agent, Purchaser agrees to indemnify and hold harmless the Escrow Agent and each of its officers, directors, employees and agents (and any successor escrow agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising directly or indirectly out of or in connection with this Agreement or the Escrow Agent's undertaking to serve as are specifically set forth hereinescrow agent hereunder. As between the parties hereto other than the Escrow Agent, if Seller's acts or omissions give rise to the above-mentioned indemnity obligation to the Escrow Agent, then Seller shall reimburse Purchaser for any expense incurred by Purchaser in connection with the indemnity of Escrow Agent. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its own gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Fund, or any loss of interest incident to any such delays.
(b) Provided that the Escrow Agent acts in good faith, the Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of the terms and conditions of, may act in reliance upon any other agreement, instrument or document signature believed by it in connection herewithgood faith to be genuine and provided that it believes in good faith that the person executing such instrument has been authorized to do so. The Escrow Agent may conclusively rely upon, assume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct the Escrow Agent on behalf of that party unless written notice to the contrary is delivered to the Escrow Agent.
(c) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to any written notice, instrument, request, consent, certificate, document,
(b) The Escrow Agent shall and not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each of the Buyer and Seller agree to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's action, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any claims, costs, payments, and expenses (including the fees and expenses of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligenceadvice.
(d) Any payments of income from the Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The Seller will provide the Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax identification number certification or non-resident alien certifications. The Escrow Agent may resign shall have no duty or obligation with respect to the preparation or the filing of any report or return pertaining to any state or Federal taxation. The Seller agrees that, for purposes of federal and state income taxes, the Seller will report all income, if any, that is earned on, or derived from, the Escrow Fund as its income in the taxable year or years in which such following income is properly includable and pay any taxes attributable thereto.
(e) In the giving event of 60 days' prior written notice any disagreement between the Purchaser on the one hand, and the Seller on the other hand, or any other dispute or disagreement resulting in adverse claims or demands being made in connection with the Escrow Fund or this Agreement or in the event that the Escrow Agent is in doubt as to Buyer and Seller. Similarlywhat action it should take hereunder, the Escrow Agent may shall be removed and replaced following the giving of 60 days' prior written notice entitled to (i) retain the Escrow Agent jointly by Buyer and Seller. In either event, the duties of Fund until the Escrow Agent shall terminate 60 days after the date have received (A) a final non-appealable order of such notice (an arbitrator or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver a court of competent jurisdiction directing delivery of the Escrow Fund to Fund, or (B) Notice of Distribution directing delivery of the successor Escrow Agent; and Fund, in which event the Escrow Agent shall then deliver the balance of disburse the Escrow Fund then in its possession to accordance with such a successor Escrow Agent as shall be appointed by Buyer and Notice of Distribution; or (ii) tender into the Seller as evidenced by a written notice filed with the Escrow Agent. If Buyer and Seller are unable to agree upon a successor Escrow Agent by the effective date registry or custody of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent any part or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow Fund, in which case the then acting Escrow Agent shall thereupon be fully released and relieved of discharged from all duties, responsibilities and obligations further duties as escrow agent under this Agreement. Any court order shall be accompanied by a legal opinion by counsel for the presenting party reasonably satisfactory to the Escrow Agreement.
(e) Agent to the effect that the order is final and non-appealable. The Escrow Agent may rely conclusively and without inquiry on the validity and genuineness of any such court order and opinion furnished to the Escrow Agent and shall not be bound act in any way by any agreement, other than this Escrow Agreement. A copy of the Merger Agreements, together accordance with the Schedules such court order and Exhibitslegal opinion without further question.
(f) The provisions of this Section 8 shall survive the resignation or removal of the Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the Escrow Fund or under termination of this Escrow Agreement and none of the costs or expenses or any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations of Buyer or Seller, as the case may be, and shall not be satisfied in any way by the Escrow FundAgreement.
Appears in 1 contract
PROVISIONS RELATING TO THE ESCROW AGENT. Indemnification of Escrow Agent.
(a) The Escrow Agent shall have no duties or responsibilities whatsoever with respect to the Escrow Fund except as are specifically set forth herein. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of the terms and conditions of, any other agreement, instrument or document in connection herewith. The Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to any written notice, instrument, request, consent, certificate, document,, letter, telegram, opinion, order, resolution or other writing hereunder without being required to determine the authenticity of such document, the correctness of any fact stated therein, the propriety of the service thereof or the capacity, identity or authority of any party purporting to sign or deliver such document. The Escrow Agent shall have no responsibility for the contents of any such writing contemplated herein and may rely without any liability upon the contents thereof.
(b) The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each of the Buyer Acquiror and Seller agree Shareholder's Representative agrees to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's action, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any claims, costs, payments, and expenses (including the fees and expenses of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligence.
(d) The Escrow Agent may resign as such following the giving of 60 days' prior written notice to Buyer and Seller. Similarly, the Escrow Agent may be removed and replaced following the giving of 60 days' prior written notice to the Escrow Agent jointly by Buyer Acquiror and Sellerthe Shareholders' Representative. In either event, the duties of the Escrow Agent shall terminate 60 days after the date of such notice (or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund to the successor Escrow Agent; and the Escrow Agent shall then deliver the balance of the Escrow Fund then in its possession to such a successor Escrow Agent as shall be appointed by Buyer Acquiror and the Seller Shareholders' Representative as evidenced by a written notice filed with the Escrow Agent. If Buyer Acquiror and Seller the Shareholders' Representative are unable to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow Fund, the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement.
(e) The Escrow Agent shall not be bound in any way by any agreement, other than this Escrow Agreement. A copy of the Merger AgreementsAgreement, together with the Schedules and ExhibitsExhibits thereto, has been provided to the Escrow Agent in connection with the execution of this Escrow Agreement and the Escrow Agent understands that the terms of the Shareholders' indemnification obligations are set forth in Article VIII of the Merger Agreement. The Merger Agreement forms an integral part of this Escrow Agreement and, therefore, Article VIII thereof is hereby incorporated by reference herein.
(f) The Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the Escrow Fund or under this Escrow Agreement and none of the costs or expenses or any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations of Buyer Acquiror or Sellerthe Shareholders' Representative, as the case may be, and shall not be satisfied in any way by the Escrow Fund.
Appears in 1 contract
PROVISIONS RELATING TO THE ESCROW AGENT. (a) The parties hereto hereby appoint and designate the Escrow Agent, and the Escrow Agent agrees to serve, as escrow agent for the purposes set forth herein.
(a) The Escrow Agent shall have no duties or responsibilities whatsoever agrees to receive from Debtor, as escrow agent, newly issued certificated representing the Escrowed Shares in the name of Secured Party for deposit in with respect to the Escrow Fund except as are specifically set forth hereinAgent to be held in escrow, in accordance with the terms and provisions of this Agreement. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of hold the terms and conditions of, any other agreement, instrument or document in connection herewith. The Escrow Agent may conclusively rely upon, and Escrowed Shares until the same shall be fully protected from all liability, loss, cost, damage or expense delivered as provided in acting or omitting to act pursuant to any written notice, instrument, request, consent, certificate, document,this Section 13.
(b) Upon the occurrence of an Event of Default hereunder or under the Note, Secured Party shall deliver a copy of the Default Notice to Escrow Agent, simultaneously with the delivery of the same to Escrow Agent. In the event that Debtor shall fail to satisfy all of the outstanding Obligations on or before the Final Payment Date, thereof, Secured Party shall notify Escrow Agent in writing that Debtor has not fulfilled its Obligations and instruct the Escrow Agent to release the Escrowed Shares to Secured Party. In the event that Debtor shall satisfy all of the outstanding Obligations at the Maturity Date, or, in the case of an Event of Default, on or before the Final Payment Date, Secured Party shall notify Escrow Agent in writing that the Obligations have been satisfied and instruct Escrow Agent to release the Escrowed Shares to Debtor and Debtor shall thereafter cancel such certificates evidencing the Escrowed Shares and return the same to treasury. Within five (5) days after receipt by the Escrow Agent of any written notice hereunder, the Escrow Agent shall deliver the Escrowed Shares, to the party or parties in the manner set forth in the written notice.
(c) The Escrow Agent shall not be liable entitled to any fees or expense for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each of the Buyer and Seller agree to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder acting as a consequence of such party's action, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any claims, costs, payments, and expenses (including the fees and expenses of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligencesuch.
(d) The Escrow Agent may resign as such Agent’s acceptance of its duties under this Agreement is subject to the following the giving of 60 days' prior written notice terms and conditions, which shall govern and control with respect to Buyer its rights, duties, liabilities and Seller. Similarly, the immunities:
(i) The Escrow Agent may be removed makes no representations or warranties and replaced following the giving of 60 days' prior written notice has no responsibilities as to the Escrow Agent jointly by Buyer and Seller. In either eventcorrectness of any statement contained herein, the duties of the Escrow Agent shall terminate 60 days after the date of such notice (or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund to the successor Escrow Agent; and the Escrow Agent shall then deliver not be required to inquire as to the balance performance of the Escrow Fund then in its possession to such a successor Escrow Agent as shall be appointed by Buyer and the Seller as evidenced by a written notice filed with the Escrow Agentany obligation under any agreement or document other than this Agreement. If Buyer and Seller are unable to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow Fund, the then acting The Escrow Agent shall be fully released protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document from Secured Party only as to its due execution and relieved the validity and effectiveness of its provisions, but also as to the truth of any information therein contained and what it purports to be. The Escrow Agent shall be entitled to rely upon any 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 thereof. The Escrow Agent may act or fail to act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it, without independent investigation, to be genuine and may assume that any person purporting to give notice or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(ii) The sole duty of the Escrow Agent, other than as herein specified, shall be to receive the Escrowed Shares and hold the same subject to release, in accordance with the written instructions of Secured Party, or as otherwise provided herein.
(iii) The Escrow Agent may, at any time, resign and be discharged from its duties hereunder by providing written notice to each of Debtor and Secured Party and depositing the Escrow Deposit with a successor escrow agent designated by Debtor and Secured Party. Upon receipt of the Escrow Agent’s resignation, Debtor and Secured Party shall promptly appoint a successor escrow agent. If no successor shall have been appointed within ten (10) days after the mailing of notice of resignation by the Escrow Agent, then the Escrow Agent shall be entitled to deposit any or all duties, responsibilities and obligations under this of the Escrow AgreementDeposit with a court of competent jurisdiction.
(e) Notwithstanding to the contrary herein, at any time the Escrow Agent shall have the right, in its sole discretion, to deposit the Escrowed Shares with a court having competent jurisdiction, in which event the Escrow Agent shall give written notice of such deposit to each of the other parties hereto. Upon such deposit, the Escrow Agent shall be relieved and discharged of all further duties and responsibilities with respect to the Escrowed Shares.
(f) The parties hereto jointly and severally indemnify and hold Escrow Agent harmless from any damage, loss, claim or action arising from his service as Escrow Agent hereunder, provided however, Escrow Agent shall not be bound in any way indemnified for intentional wrong doing by any agreement, other than this Escrow Agreement. A copy of the Merger Agreements, together with the Schedules and Exhibits
(f) The Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the acts by Escrow Fund or under this Escrow Agreement and none Agent of the costs or expenses or any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations of Buyer or Seller, as the case may be, and shall not be satisfied in any way by the Escrow Fundgross negligence.
Appears in 1 contract
PROVISIONS RELATING TO THE ESCROW AGENT. (a) Section 5.1 The Escrow Agent shall have no duties or responsibilities whatsoever with respect to the Escrow Fund Escrowed Property except as are specifically set forth herein. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of the terms and conditions of, any other agreement, instrument or document in connection herewith, including without limitation the Merger Agreement. The Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to any written notice, instrument, request, consent, certificate, document,
(b) , letter, opinion, order, resolution or other writing hereunder that is in a form and manner consistent with the requirements set forth in this Escrow Agreement without being required to determine the authenticity of such document, the correctness of any fact stated therein, the propriety of the service thereof or the capacity, identity or authority of any party purporting to sign or deliver such document. The Escrow Agent shall have no responsibility for the contents of any such writing contemplated herein and may rely without any liability upon the contents thereof. Concurrently with the execution of this Escrow Agreement, the Other Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit B-1 and Exhibit B-2 to this Escrow Agreement. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with within the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's ’s own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each . The Parties, jointly and severally, shall indemnify, defend and hold harmless the Escrow Agent from and against any and all loss, liability, cost, damage and expense, including, without limitation, attorneys’ fees and expenses or other professional fees and expenses which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent, arising out of or relating in any way to this Escrow Agreement or any transaction to which this Escrow Agreement relates, unless such loss, liability, cost, damage or expense shall have been finally adjudicated to have been directly caused by the willful misconduct or gross negligence of the Buyer and Seller agree to jointly and severally indemnify Escrow Agent. The provisions of this Section 5.1 shall survive the resignation or removal of the Escrow Agent and its employeesthe termination of this Escrow Agreement. THE ESCROW AGENT SHALL NOT BE LIABLE, directorsDIRECTLY OR INDIRECTLY, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's actionFOR ANY (I) DAMAGES, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any claimsLOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, costsOTHER THAN DAMAGES, paymentsLOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, and expenses OR (including the fees and expenses of counselII) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunderSPECIAL, except in either case for claimsINDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligenceEVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
(d) Section 5.2 The Escrow Agent may resign as such following the giving of 60 sixty (60) days' ’ prior written notice to Buyer and Sellereach of the Other Parties. Similarly, the Escrow Agent may be removed and replaced following the giving of 60 sixty (60) days' ’ prior written notice to the Escrow Agent jointly by Buyer and Sellerthe Other Parties. In either event, the duties of the Escrow Agent shall terminate 60 sixty (60) days after the date of such notice (or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund Escrowed Property to the successor Escrow Agent; and the Escrow Agent shall then deliver the balance of the Escrow Fund Escrowed Property then in its possession to such a successor Escrow Agent as shall be appointed by Buyer and the Seller Other Parties as evidenced by a written notice filed with Joint Instructions delivered to the Escrow Agent. If Buyer and Seller are unable to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance Escrowed Property (or the deposit or delivery of the Escrowed Property by the Escrow FundAgent pursuant to Section 5.4 below), the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement.
(e) The Escrow Agent shall not be bound in any way by any agreement, other than this Escrow Agreement. A copy of the Merger Agreements, together with the Schedules and Exhibits
(f) Section 5.3 The Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the Escrow Fund Escrowed Property or under this Escrow Agreement and none of the costs or expenses or of any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations of Buyer or Sellerthe Other Parties, as the case may be, and shall not be satisfied in any way by the Escrowed Property.
Section 5.4 Should any controversy arise involving the parties hereto or any of them or any other person with respect to this Escrow FundAgreement or the Escrowed Property, or should a substitute escrow agent fail to be designated as provided in Section 5.2 hereof, or if the Escrow Agent should be in doubt as to what action to take, the Escrow Agent shall have the right, but not the obligation, either to (a) withhold delivery of the Escrowed Property until the controversy is resolved, the conflicting demands are withdrawn or its doubt is resolved, (b) deposit all Escrowed Property into the registry of any court of competent jurisdiction and notify the Other Parties of such deposit, and thereupon the Escrow Agent shall be discharged from all further duties and responsibilities as Escrow Agent under this Escrow Agreement or (c) file an interpleader action in any court of competent jurisdiction, and upon the filing thereof and deposit of all Escrowed Property into the registry of such court, the Escrow Agent shall be relieved of all liability as to the Escrowed Property and shall be entitled to recover from the losing party of such action reasonable attorneys’ fees, expenses and other costs incurred in commencing and maintaining any such interpleader action.
Appears in 1 contract
Samples: Escrow Agreement (Mobile Mini Inc)
PROVISIONS RELATING TO THE ESCROW AGENT. (a) The Escrow Agent shall have no duties not be liable hereunder, except for its own gross negligence or responsibilities whatsoever willful misconduct. Further, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Fund except as are specifically set forth hereinAgent, Buyer and Sellers shall jointly and severally indemnify, defend and hold the Escrow Agent and each of its officers, directors, employees and agents (and any successor escrow agent) harmless from and against any and all losses, liabilities, claims, actions, damages, actions and expenses, including reasonable attorneys’ fees and disbursements, arising directly or indirectly out of or in connection with this Agreement or the Escrow Agent’s duties hereunder. The If one party’s acts or omissions give rise to the above-mentioned indemnity obligation to the Escrow Agent, that party shall reimburse the other party for any expense incurred by such party in connection therewith. Without limiting the foregoing, the Escrow Agent shall neither in no event be responsible liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays in the investment or under, nor chargeable with knowledge reinvestment of the terms and conditions ofEscrow Fund, or any other agreement, instrument or document in connection herewith. The Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant loss of interest incident to any written notice, instrument, request, consent, certificate, document,such delays.
(b) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and provided that it believes in good faith that the person duly authorized to do so. The Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct the Escrow Agent on behalf of that party unless written notice to the contrary is delivered to the Escrow Agent.
(c) The Escrow Agent may act pursuant to the advice of legal counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each of the Buyer and Seller agree to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's action, and the parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any claims, costs, payments, and expenses (including the fees and expenses of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligenceadvice.
(d) The In the event of any disagreement between Buyer and Sellers resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that the Escrow Agent may resign is in doubt as such following the giving of 60 days' prior written notice to Buyer and Seller. Similarlywhat action it should take hereunder, the Escrow Agent may shall be removed and replaced following entitled to (i) retain the giving Escrow Fund until the Escrow Agent shall have received (A) a final non-appealable order of 60 days' prior written an arbitrator or a court of competent jurisdiction directing delivery of the Escrow Fund or (B) a Joint Request For Distribution pursuant to Section 5 hereof directing delivery of the Escrow Fund, in which event the Escrow Agent shall disburse the Escrow Fund in accordance with such notice or (ii) interplead or tender into the registry or custody of any court of competent jurisdiction any part or all of the Escrow Fund. Any court order shall be accompanied by a legal opinion by counsel for the presenting party reasonably satisfactory to the Escrow Agent jointly by Buyer to the effect that the order is final and Sellernon-appealable. In either event, The Escrow Agent shall act on such court order and legal opinion without further question.
(e) This Agreement expressly sets forth all the duties of the Escrow Agent shall terminate 60 days after the date of such notice (with respect to any and all matters pertinent hereto. No implied duties or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund to the successor Escrow Agent; and the Escrow Agent shall then deliver the balance of the Escrow Fund then in its possession to such a successor Escrow Agent as shall be appointed by Buyer and the Seller as evidenced by a written notice filed with read into this Agreement against or affecting the Escrow Agent. If Buyer and Seller are unable to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow Fund, the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement.
(e) The Escrow Agent shall not be bound required to take notice of or have any duties under the provisions of any other agreement among the other parties hereto, including, but not limited to, the Asset Purchase Agreement, except this Agreement. The Escrow Agent shall not be charged with or be deemed to have any knowledge or notice of any notice, fact or circumstance not specifically set forth in this Agreement or furnished to the Escrow Agent in notices provided to the Escrow Agent in writing and strictly in accordance with the notice provisions of this Agreement. In no event shall the Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages. The Escrow Agent shall not be obligated to take any legal action or to commence any proceedings in connection with this Agreement or any property held hereunder or to appear in, prosecute or defend in any way such legal action or proceedings. The Escrow Agent shall have no liability with respect to the transfer or distribution of any funds effected by any agreement, other than this the Escrow Agreement. A copy of Agent pursuant to wiring or transfer instructions provided to the Merger Agreements, together Escrow Agent in accordance with the Schedules and Exhibitsprovisions of this Agreement.
(f) The provisions of this Section 8 shall survive the resignation or removal of the Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the Escrow Fund or under termination of this Escrow Agreement and none of the costs or expenses or any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations of Buyer or Seller, as the case may be, and shall not be satisfied in any way by the Escrow FundAgreement.
Appears in 1 contract
PROVISIONS RELATING TO THE ESCROW AGENT. (a) Section 5.1 The Escrow Agent shall have no duties or responsibilities whatsoever with respect to the Escrow Fund Escrowed Property except as are specifically set forth herein. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of the terms and conditions of, any other agreement, instrument or document in connection herewith, including without limitation the Merger Agreement. The Escrow Agent may conclusively rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to any written notice, instrument, request, consent, certificate, document,, letter, opinion, order, resolution or other writing hereunder that is in a form and manner consistent with the requirements set forth in this Escrow Agreement without being required to determine the authenticity of such document, the correctness of any fact stated therein, the propriety of the service thereof or the capacity, identity or authority of any party purporting to sign or deliver such document. The Escrow Agent shall have no responsibility for the contents of any such writing contemplated herein and may rely without any liability upon the contents thereof. Concurrently with the execution of this Escrow Agreement, the Other Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit B-1 and Exhibit B-2 to this Escrow Agreement.
(b) Section 5.2 The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or with within the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's ’s own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
(c) Each of the Buyer and Seller agree Section 5.3 The Other Parties agree, severally but not jointly, to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it hereunder as a consequence of such party's actionan action by either of the Other Parties, and each of the parties agree jointly and Other Parties agree, severally but not jointly, to indemnify the Escrow Agent and hold it harmless against 50% of any and all other claims, costs, payments, and expenses (including the reasonable fees and expenses of counsel) and all other liabilities incurred by it in connection with the acceptance of this Escrow Agreement and the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities incurred by the Escrow Agent resulting from its own willful misconduct or gross negligence. The obligations of the other Parties under this Section 5.3 shall survive the termination of this Escrow Agreement and the resignation or removal of the Escrow Agent and the disbursement of the Escrowed Property.
(d) Section 5.4 The Escrow Agent may resign as such following the giving of 60 sixty (60) days' ’ prior written notice to Buyer and Sellereach of the Other Parties. Similarly, the Escrow Agent may be removed and replaced following the giving of 60 sixty (60) days' ’ prior written notice to the Escrow Agent jointly by Buyer and Sellerthe Other Parties. In either event, the duties of the Escrow Agent shall terminate 60 sixty (60) days after the date of such notice (or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund Escrowed Property to the successor Escrow Agent; and the Escrow Agent shall then deliver the balance of the Escrow Fund Escrowed Property then in its possession to such a successor Escrow Agent as shall be appointed by Buyer and the Seller Other Parties as evidenced by a written notice filed with Joint Instructions delivered to the Escrow Agent. If Buyer and Seller are unable to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance Escrowed Property (or the deposit or delivery of the Escrowed Property by the Escrow FundAgent pursuant to Section 5.6 below), the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement.
(e) The Escrow Agent shall not be bound in any way by any agreement, other than this Escrow Agreement. A copy of the Merger Agreements, together with the Schedules and Exhibits
(f) Section 5.5 The Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding with respect to the Escrow Fund Escrowed Property or under this Escrow Agreement and none of the costs or expenses or of any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations of Buyer or Sellerthe Other Parties, as the case may be, and shall not be satisfied in any way by the Escrowed Property.
Section 5.6 Should any controversy arise involving the parties hereto or any of them or any other person with respect to this Escrow FundAgreement or the Escrowed Property, or should a substitute escrow agent fail to be designated as provided in Section 5.4 hereof, or if the Escrow Agent should be in doubt as to what action to take, the Escrow Agent shall have the right, but not the obligation, either to (a) withhold delivery of the Escrowed Property until the controversy is resolved, the conflicting demands are withdrawn or its doubt is resolved or (b) deposit all Escrowed Property into the registry of any court of competent jurisdiction and notify the Other Parties of such deposit, and thereupon the Escrow Agent shall be discharged from all further duties and responsibilities as Escrow Agent under this Escrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (Mobile Mini Inc)
PROVISIONS RELATING TO THE ESCROW AGENT. (a) The parties hereto acknowledge and agree that the Escrow Agent (i) shall have no not be responsible for any of the agreements referred to herein but shall be obligated only for performance of such duties or responsibilities whatsoever with respect to the Escrow Fund except as are specifically set forth in this Agreement; (ii) shall not be obligated to take any legal or other action hereunder which might involve any expense or liability unless it shall have been furnished with indemnification as set forth herein. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of the terms and conditions of, any other agreement, instrument or document in connection herewith. The Escrow Agent ; (iii) may conclusively rely upon, on and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to refraining from acting upon any written notice, instruction, instrument, requeststatement, consentrequest or document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, certificateand shall have no responsibility for determining the accuracy thereof, document,and (iv) may consult with counsel satisfactory to it, including in-house counsel, and the opinion of such counsel 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 of such counsel.
(b) The Neither the Escrow Agent nor any of its directors, officers or employees shall not be liable to anyone for any action taken or omitted to be taken by it in good faith and reasonably believed by it to be authorized hereby or with the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice any of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(c) Each of the Buyer and Seller agree to jointly and severally indemnify the Escrow Agent and its employees, directors, officers and agents and hold each harmless against any and all liabilities incurred by it or employees hereunder as a consequence except in the case of such party's actionits own gross negligence or willful misconduct. Parent, the Company and the parties agree Shareholders, jointly and severally severally, covenant and agree to indemnify the Escrow Agent and hold it harmless without limitation from and against any claimsloss, costs, payments, and expenses (including the fees and expenses liability or expense of counsel) and all liabilities incurred by it in connection with the performance of its duties hereunder and them hereunder, except in either case for claims, costs, payments and expenses (including the fees and expenses of counsel) and liabilities any nature incurred by the Escrow Agent resulting from arising out of or in connection with this Agreement or with the administration of its own duties hereunder, including but not limited to reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim or liability relating to this Agreement, unless such loss, liability or expense shall be caused by the Escrow Agent's willful misconduct or gross negligence. In no event shall the Escrow Agent be liable for direct, special or consequential damages.
(c) Parent, the Company and the Shareholders, jointly and severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent on any such payment or other activities under this Agreement. Parent, the Company and the Shareholders shall instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. Parent, the Company and the Shareholders, jointly and severally, agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct the same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable attorneys' fees), interest and penalties. The provisions of paragraphs (b) and (c) shall survive the termination of this Agreement or pursuant to the terms hereof, the resignation or removal of the Escrow Agent or the tender by the Escrow Agent into the registry or custody of any court of competent jurisdiction of the Escrow Funds.
(d) The Escrow Agent may resign as such following In the giving of 60 days' prior written notice to Buyer and Seller. Similarly, the Escrow Agent may be removed and replaced following the giving of 60 days' prior written notice to the Escrow Agent jointly by Buyer and Seller. In either event, the duties of event that the Escrow Agent shall terminate 60 days after the date of such notice (be uncertain as to its duties or at such earlier date as may be mutually agreeable), except for its obligations to hold and deliver the Escrow Fund to the successor Escrow Agent; and the Escrow Agent rights hereunder or shall then deliver the balance of the Escrow Fund then in its possession to such a successor Escrow Agent as shall be appointed by Buyer and the Seller as evidenced by a written notice filed with the Escrow Agent. If Buyer and Seller are unable to agree upon a successor Escrow Agent by the effective date of such resignation or removal, the then acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief; and any such resulting appointment shall be binding upon all of the parties hereto. Upon acknowledgment by any successor Escrow Agent of the receipt of the then remaining balance of the Escrow Fund, the then acting Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Escrow Agreement.
(e) The Escrow Agent shall not be bound in any way by any agreement, other than this Escrow Agreement. A copy of the Merger Agreements, together with the Schedules and Exhibits
(f) The Escrow Agent shall be under no duty to institute or defend any arbitration or legal proceeding receive instructions with respect to the Escrow Fund Shares which are in conflict either with other instructions received by it or with any provision of this Agreement, the Escrow Agent shall have the absolute right to suspend all further performance under this Escrow Agreement and none (except for the safe keeping of the costs Escrow Shares) until the resolution of such uncertainty or expenses conflicting instructions by a final judgment of a court of competent jurisdiction, joint written instructions from all other parties hereto, or any such proceeding shall be borne by the Escrow Agent. The costs and expenses of any such proceeding shall be borne as decided by the arbitrators or court and shall be direct obligations of Buyer or Seller, as the case may be, and shall not be satisfied in any way by the Escrow Fundotherwise.
Appears in 1 contract