Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
Appears in 7 contracts
Samples: Escrow Agreement, Escrow Agreement, Escrow Agreement
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow FundsFund, the acceptance of the moneysmoneys deposited therein, the sufficiency of the moneys held on deposit in the Escrow Funds Fund to pay the Refunded District Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- non-negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the CityDistrict, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund proceeds to accomplish the refunding of the Refunded Bonds, District Bonds or to the validity of this Escrow Agreement as to the City District and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence negligence, willful misconduct or willful misconductdefault, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the CityDistrict, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingDistrict.
Appears in 3 contracts
Samples: Escrow Agreement, Escrow Agreement, Escrow Agreement
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the Agent’s acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for is subject to the following terms and conditions, which the parties hereto agree will govern and control with respect to its own negligence or willful misconductrights, duties, liabilities and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. immunities:
(a) The Escrow Agent may consult with counsel, who may or may will not be counsel to the Cityliable for any error of judgment, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of or for any action taken, suffered act done or step taken or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, sufferingfaith, or omitting for any action under this Escrow Agreementmistake of fact or law, such matter or for anything which it may be deemed to be conclusively established by a certificate signed by an officer of the Citydo or refrain from doing in connection therewith, except its own gross negligence or willful misconduct. Notwithstanding anything in this Escrow Agreement to the contrary, in In no event shall the Escrow Agent be liable for incidental, indirect, special, indirect consequential or consequential loss or damage punitive damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. No provision .
(b) The Escrow Agent may consult with legal counsel selected by it, and it will not be liable for any action taken or omitted by it in good faith in accordance with the advice of this such counsel.
(c) The Escrow Agreement shall require Agent will have no discretion whatsoever with respect to the management, disposition or investment of the Escrow Deposit and is not a trustee or fiduciary to the Buyer or Seller.
(d) The Buyer and Seller agree jointly and severally to indemnify and hold the Escrow Agent to expend and its directors, employees, officers, agents, successors and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all losses, claims, damages, liabilities and expenses (collectively, “Damages”), including, without limitation, reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent or risk its own funds such persons, or otherwise incur any financial liability incurred by them, directly or indirectly, in connection with this Agreement or the Escrow Agent’s acceptance of this appointment as the Escrow Agent hereunder or the performance or exercise of any of its duties hereunder. Such indemnity includes, without limitation, Damages incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Agreement or involving the subject matter hereof. The indemnification provisions contained in this paragraph are in addition to any other rights any of the Indemnified Parties may have by law or otherwise and will survive the termination of this Agreement or the resignation or removal of the Escrow Agent. Notwithstanding any provision to the contrary in this Agreement, the Buyer and Seller will have no liability to the Indemnified Parties with respect to any Damages that result, directly or indirectly, from the gross negligence or willful misconduct of the Escrow Agent or such Indemnified Party. The provisions of this clause (d) shall survive the termination of this Agreement and any resignation or removal of the Escrow Agent as escrow agent hereunder. The parties hereby grant the Escrow Agent a lien on, right of set-off against and security interest in the exercise Escrow Fund for the payment of its rights or powersany claim for indemnification, compensation, expenses and amounts due hereunder.
(e) The Escrow Agent’s duties and obligations hereunder shall be determined solely by the express provisions of this Agreement. The Escrow Agent may conclusively rely shall have no implied duties or obligations and shall not be fully charged with knowledge or notice of any fact or circumstance not specifically set forth herein. The Escrow Agent is not charged with any duties or responsibilities with respect to the Purchase Agreement and shall not be concerned with the terms thereof, except to the extent that capitalized terms used but not defined herein are defined in the Purchase Agreement. The Escrow Agent shall not be required to notify or obtain the consent, approval, authorization or order of any court or governmental body to perform its obligations under this Agreement, except as expressly provided herein.
(f) The Escrow Agent will have no responsibility in respect of the validity or sufficiency of this Agreement or of the terms hereof. The recitals of facts in this Agreement will be taken as the statements of the Buyer and Seller, and the Escrow Agent assumes no responsibility for the correctness of the same.
(g) The Escrow Agent will be protected in acting or refraining from acting upon any notice, instruction, direction, resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval certificate, report, opinion, bond or other paper or document believed by which it in good faith believes to be genuine and to have been signed or and presented by the proper party or parties. The Whenever the Escrow Agent will deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action under this Agreement, such matter may execute be deemed conclusively proved and established by a certificate signed by the Buyer and Seller, and such certificate will be full warranty for any action taken or suffered in good faith under the provisions of this Agreement.
(h) In the event of a dispute between the parties hereto sufficient in the sole discretion of the trusts Escrow Agent to justify its doing so, the Escrow Agent will be entitled at the expense of the Escrow Deposit to tender the Escrow Deposit into the registry or powers hereunder or perform custody of any duties hereunder either directly or by or through agentscourt of competent jurisdiction, attorneys, custodians or nominees appointed with due careto initiate such legal proceedings at the expense of the Escrow Deposit as it deems appropriate, and shall not thereupon to be responsible for discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in any willful misconduct or negligence on such court as the part Escrow Agent determines to have jurisdiction over the Escrow Deposit. The filing of any agentsuch legal proceedings will not deprive the Escrow Agent of its compensation hereunder earned prior to such filing.
(i) Except as specifically set forth above, attorney, custodian the Escrow Agent does not have any interest in the Escrow Deposit but is serving as escrow agent only and having only possession thereof. This Section 4.2(i) will survive notwithstanding any termination of this Agreement or nominee so appointed. the resignation of the Escrow Agent.
(j) Any bank, banking association or corporation or association into which the Escrow Agent may be merged or merged, converted or with which it the Escrow Agent may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, banking association or corporation or association succeeding to which all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of transferred, shall succeed to all the Escrow Agent Agent’s rights, obligations and immunities hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such successionhereto, anything herein to the contrary notwithstanding.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Patheon Inc)
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconductis subject to the following terms and conditions, which the parties to this Escrow Agreement hereby agree shall govern and control with respect to the duties rights, duties, liabilities and obligations immunities of the Escrow Agent:
(a) The responsibilities of the Escrow Agent hereunder shall be determined by to act as agent and bailee for Acquisition Sub and the express provisions Stockholders, to hold the Escrow Shares in safekeeping, and to make disposition of this the Escrow Agreement. Shares as provided herein;
(b) The Escrow Agent acts herein only as agent and bailee for the Acquisition Sub and the Stockholders, and does not undertake to construe the meaning of any contract, agreement or other instrument, or to determine any of the matters covered by the same. It is expressly understood and agreed that the Escrow Agent does not assume any of the obligations or duties which Parent, Acquisition Sub, the Stockholders or the Stockholders' Representative may consult with counselhave under the Share Exchange Agreement, who may this Escrow Agreement or may any other agreement, except to hold and dispose of the Escrow Shares as provided for herein;
(c) The Escrow Agent shall be protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document furnished to it, not be counsel only as to its due execution and the validity and effectiveness of its provisions, but also as to the City, truth and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect accuracy of any action takeninformation contained therein, suffered which it in good faith believes to be genuine and which is signed or omitted presented to it by a proper person, or upon evidence deemed by it in good faith to be sufficient; and
(d) So long as Acquisition Sub or the Stockholders have any interest in accordance therewith. Whenever the Escrow Shares, (i) the Escrow Agent shall deem agrees that it necessary will not assert any right which it may have to setoff, recoupment, reduction or desirable other right with respect to the Escrow Shares now or hereafter acquired, arising from any relationship, debt, obligations, liability, credit accommodation or otherwise that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall owed the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on or any party having an interest in the part of any of Escrow Shares, (ii) the Escrow Agent shall provide the parties hereto where an instrument with such receipts, account statements, affidavits as they may from time to time request, and (iii) the Escrow Agent shall not move the Escrow Shares from the Escrow Account without the written consent of transfer all the parties hereto in accordance with the terms of this Escrow Agreement.
(e) Within five days of the termination of this Escrow Agreement on the Expiration Date or assignment is required by law to effect such successionotherwise as provided in Section 18, anything herein the Escrow Agent agrees that it will disburse to the contrary notwithstandingStockholders' Representative all Escrow Shares contained in the Escrow Account as of such date.
Appears in 2 contracts
Samples: Share Exchange Agreement (Eventures Group Inc), Share Exchange Agreement (Eventures Group Inc)
Responsibilities of Escrow Agent. (a) The Escrow Agent and its employeesrespective successors, assigns, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement, the acceptance of the funds and securities deposited in the Escrow AgreementDeposit Fund, the purchase of the Government Obligations, the establishment of the Escrow FundsDeposit Fund, the acceptance retention of the moneys, Government Obligations or the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds proceeds thereof or any payment, transfer or other application of moneys or obligations securities by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- non-negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility shall, however, be liable to the Issuer for its negligent or willful acts, omissions or errors which violate or fail to comply with the correctness thereofmaterial terms of this Agreement. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Agreement and no additional covenants or obligations shall be read into this Agreement against the Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Agent.
(b) Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, suffering or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powersIssuer. The Escrow Agent may conclusively rely rely, as to the correctness of statements, conclusions and shall be fully protected in acting or refraining from acting opinions therein, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval opinion or other paper document furnished to the Escrow Agent pursuant to any provision of this Agreement; the Escrow Agent shall be protected and shall not be liable for acting or document believed by it proceeding, in good faith upon such reliance; and the Escrow Agent shall be under no duty to be genuine and make any investigation or inquiry as to have been signed any statements contained or presented by the proper party or partiesmatters referred to in any such instrument. The Escrow Agent may execute consult with counsel, who may be counsel to the Issuer or independent counsel, with regard to legal questions, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance herewith. The payment obligations of the trusts or powers Escrow Agent hereunder or perform any with respect to the purchase of government obligations and the payment of the Refunded Bonds shall be paid from, and are limited to the funds available, established and maintained hereunder and the Escrow Agent shall not be required to expend its own funds for the performance of its duties hereunder either directly or by or under this Agreement. The Escrow Agent may act through agents, attorneys, custodians or nominees appointed with due care, its agents and attorneys and shall not be responsible liable for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee such person so appointedappointed with due care. Any bank, corporation or association into which the The Escrow Agent may shall not be merged responsible or converted liable for any failure or with which delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; hurricanes or other storms; wars; terrorism; similar military disturbances; sabotage; epidemic; pandemic; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communications services; accidents; labor disputes; acts of civil or military authority or governmental action; it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which being understood that the Escrow Agent shall be a party, or any bank, corporation or association succeeding use commercially reasonable efforts which are consistent with accepted practices in the banking industry to all or substantially all of resume performance as soon as reasonably practicable under the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingcircumstances.
Appears in 1 contract
Samples: Escrow Deposit Agreement
Responsibilities of Escrow Agent. The Escrow Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which the parties hereto agree shall govern and control with respect to its rights, duties, liabilities and immunities:
(a) Except as to its due execution and delivery of the Agreement, it makes no representation and has no responsibility as to the validity of this Agreement or of any other instrument referred to herein, or as to the correctness of any statement contained herein, and it shall not be required to inquire as to the performance of any obligation under the Merger Agreement.
(b) The Escrow Agent shall be protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth of any information therein contained, which it in good faith believes to be genuine and what it purports to be.
(c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection therewith, except its own gross negligence or misconduct.
(d) The Escrow Agent may consult with competent and responsible legal counsel selected by it, and it shall not be liable for any action taken or omitted by it in good faith in accordance with the advice of such counsel.
(e) The Escrow Agent shall have no discretion whatsoever with respect to the management, disposition or investment of the Escrow Account and is not a trustee or fiduciary to Cardinal or the ALP Stockholders. Cardinal and the ALP Stockholders Representative acknowledge and agree that all investments made pursuant to this section shall be for the account and risk of Cardinal and the ALP Stockholders and any losses associated with investments shall be borne solely by Cardinal and the ALP Stockholders.
(f) Cardinal and the ALP Stockholders agree to jointly and severally indemnify and hold the Escrow Agent and its directors, employees, agents officers, agents, successors and servants shall not assigns (collectively, the "Indemnified Parties") harmless from and against any and all losses, claims, damages, liabilities and expenses (collectively, "Damages"), including, without limitation, reasonable costs of investigation and counsel fees and expenses which may be held to any personal liability whatsoever, in tort, contract, imposed on the Escrow Agent or otherwise, incurred by it in connection with its acceptance of this appointment as the execution Escrow Agent hereunder or the performance of its duties hereunder. Such indemnity includes, without limitation, Damages incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Escrow Agreement or involving the subject matter hereof. The indemnification provisions contained in this paragraph are in addition to any other rights any of the Indemnified Parties may have by law or otherwise and delivery shall survive the termination of this Agreement or the resignation or removal of the Escrow Agent. Notwithstanding any provision to the contrary in this Escrow Agreement, Cardinal and the establishment ALP Stockholders shall have no liability to the Indemnified Parties with respect to any Damages that result, directly or indirectly, from the gross negligence or misconduct of the Escrow Funds, the acceptance Agent. Any obligation of the moneys, ALP Stockholders pursuant to this Section shall be satisfied only by the sufficiency deduction from the Escrow Deposit by the ALP Stockholders Representative of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application amount of moneys or obligations by the such obligations.
(g) The Escrow Agent shall have no duties or responsibilities except those expressly set forth herein, and it shall not be bound by any modification of this Agreement unless in accordance with writing and signed by all parties hereto or their respective successors in interest.
(h) The Escrow Agent shall have no responsibility in respect of the provisions validity or sufficiency of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its dutiesterms hereof. The recitals of fact contained facts in the “Whereas” clauses herein this Escrow Agreement shall be taken as the statements of Cardinal and the CityALP Stockholders, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. same.
(i) The Escrow Agent shall not be liable protected in connection with the performance of its duties under this Escrow Agreement except for its own negligence acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or willful misconduct, other paper or document reasonably believed by it to be genuine and the duties to have been signed and obligations of the Escrow Agent shall be determined presented by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may proper party or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewithparties. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, taking or omitting suffering any action under this Escrow Agreement, such matter may be deemed to be conclusively proved and established by a certificate signed by an officer Cardinal and the ALP Stockholders Representative (on behalf of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profitsALP Stockholders), even if and such certificate shall be full warranty for any action taken or suffered in good faith under the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision provisions of this Escrow Agreement shall require Agreement.
(j) In the event of a dispute between the parties hereto sufficient in the discretion of Escrow Agent to expend or risk justify its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunderdoing so, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of entitled at the corporate trust business expense of the Escrow Agent shall be Deposit to tender the successor Escrow Deposit into the registry or custody of any court of competent jurisdiction, to initiate such legal proceedings at the expense of the Escrow Deposit as it deems appropriate, and thereupon to be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in any such court as Escrow Agent hereunder without shall determine to have jurisdiction over the execution or Escrow Deposit. The filing of any paper with such legal proceedings shall not deprive Escrow Agent of its compensation hereunder earned prior to such filing.
(k) Except as specifically set forth above, the Escrow Agent does not have any party hereto interest in the Escrow Deposit but is serving as escrow agent only and having only possession thereof. This Section 4.2(k) shall survive notwithstanding any termination of this Agreement or any further act on the part of any resignation of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingEscrow Agent.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent Agent's acceptance -------------------------------- of its duties under this agreement is subject to the following terms and its employeesconditions which the parties hereto agree shall govern and control with respect to the rights, agents duties, liabilities and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment immunities of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact Agent:
(1) Anything herein contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided hereincontrary notwithstanding, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable obligated to take any action which might in connection its reasonable judgment involve it in any expense or liability unless furnished with the performance of its duties under this Escrow Agreement except for its own negligence reasonable indemnity.
(2) In making any payment or willful misconducttaking any other action hereunder, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval consent or other paper or document believed by it to be genuine and to have been signed executed or presented by the proper party or parties. The Escrow Agent may execute perform any of the trusts or powers hereunder or perform any duties hereunder provided for herein either directly or by through agents or through agentsattorneys and be protected from any liability in acting, attorneysin the absence of bad faith, custodians or nominees appointed with due care, upon the advice of attorneys and accountants.
(3) The Escrow Agent shall not be responsible liable for any willful misconduct action taken in accordance with instructions, requests or directions it is required to follow under any provision of this Escrow Agreement or otherwise authorized or within the rights and powers conferred upon it by this Escrow Agreement, except that nothing contained herein shall relieve the Escrow Agent from liability for its own negligence or wilful misconduct.
(4) The Escrow Agent undertakes to perform such duties and only such duties as are specifically set forth in this Escrow Agreement and no implied covenants or obligations shall be read into this Escrow Agreement, or the Merger Agreement or the Stock Purchase Agreement against the Escrow Agent, nor shall the Escrow Agent have any responsibility to inquire into the validity or enforceability of any agreement made or entered into in connection with this Escrow Agreement including but not limited to the Merger Agreement and the Stock Purchase Agreement.
(5) Xxxxx and the Sellers hereby agree, jointly and severally, to indemnify the Escrow Agent for, and to hold it harmless against, any loss, liability or reasonable out of pocket expense incurred without negligence or bad faith on the part of the Escrow Agent, arising out of or in connection with its entering into this Escrow Agreement and carrying out its duties hereunder, including the cost and expenses of defending itself against any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which claim of liability.
(6) Moneys received by the Escrow Agent hereunder need not be segregated in any manner except to the extent required by law and may be merged or converted or with which it deposited under such general conditions as may be consolidatedprescribed by law in the general banking department of the Escrow Agent, or any bank, corporation or association resulting from any merger, conversion or consolidation to which and the Escrow Agent shall not be a party, or liable for any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.interest
Appears in 1 contract
Responsibilities of Escrow Agent. The (a) Escrow Agent shall exercise the same degree of care toward the Escrow Property as it exercises toward its own similar property and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery higher standard of care under this Escrow Agreement, nor deemed to owe any fiduciary duty to the establishment of the Depositors.
(b) Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held Agent shall be obligated to perform only such duties as are expressly set forth in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys this Agreement. No implied covenants or obligations by the shall be inferred from this Agreement against Escrow Agent, nor shall Escrow Agent in accordance with be bound by the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of agreement among the Escrow Agent made in good faith in Depositors beyond the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The specific terms hereof.
(c) Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement hereunder except for its own gross negligence or willful misconduct and the Depositors jointly and severally each agree to indemnify Escrow Agent for and hold it harmless as to any loss, liability, or expense, including court costs and reasonable attorney fees, incurred on the part of Escrow Agent and arising out of or in connection with Escrow Agent's duties under this Agreement, except for any such loss, liability or expense arising out of or in connection with Escrow Agent's gross negligence or willful misconduct, and the duties and obligations of the . Escrow Agent shall be determined by entitled to advancement of any such costs and expenses from the express Depositors.
(d) Subject to Section 7(c) hereof, Escrow Agent shall be entitled to rely upon any reasonable order, judgment, certification, instruction, notice or other writing delivered to it in compliance with the provisions of this Escrow AgreementAgreement 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 consult with counsel, who may or may not be counsel to the City, and act in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered instrument or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document signature believed by it to be genuine and comporting with the provisions of this Agreement and may assume that any person purporting to have give notice or receipt or advice or make any statement or execute any document in accordance with the provisions hereof has been signed or presented by the proper party or parties. The duly authorized to do so.
(e) At any time Escrow Agent may execute any of request in writing an instruction in writing from the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due careDepositors, and may at its own option include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder and which is required by applicable law. Escrow Agent shall not be responsible liable for any willful misconduct action taken in accordance with such proposed course of action without the Depositors' consent on or negligence on after the part of any agentdate specified in Escrow Agent's request for instructions, attorney, custodian or nominee so appointed. Any bank, corporation or association into which provided that (i) the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent specified date shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust at least five (5) business of the days after each Depositor has received Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.Agent's
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which the parties hereto agree shall govern and control with respect to its employeesrights, agents duties, liabilities and servants shall not be held immunities:
(a) Except as to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the its due execution and delivery of this Escrow Agreement, it makes no representation and has no responsibility as to the establishment validity of this Agreement or of any other instrument referred to herein, or as to the correctness of any statement contained herein, and it shall not be required to inquire as to the performance of any obligation under the Purchase Agreement. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument or document other than this Agreement, including but not limited to the Purchase Agreement;
(b) The Escrow FundsAgent shall be protected in acting upon any written notice, the acceptance of the moneysrequest, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any paymentwaiver, transfer consent, receipt or other application paper or document, not only as to its due execution and the validity and effectiveness of moneys or obligations by its provisions, but also as to the truth of any information therein contained, which it in good faith believes to be genuine and what it purports to be;
(c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection therewith, except its own gross negligence or willful misconduct;
(d) The Escrow Agent may consult with competent and responsible legal counsel selected by it, and it shall not be liable for any action taken or omitted by it in good faith in accordance with the advice of such counsel;
(e) Each of HFC and the Shareholders, jointly and severally agrees to indemnify and hold the Escrow Agent and its directors, employees, officers, agents, successors and assigns (collectively, the "Escrow Indemnified Parties") harmless from and against any and all losses, claims, damages, liabilities and expenses (collectively, "Damages"), including, without limitation, reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent or incurred by it in connection with the performance of its duties hereunder. Such indemnity includes, without limitation, Damages incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Agreement or involving the subject matter hereof. The indemnification provisions contained in this paragraph are in addition to any other rights any of the Escrow Indemnified Parties may have by law or otherwise and shall survive the termination of this Escrow Agreement or by reason the resignation or removal of the Escrow Agent. Notwithstanding any non-negligent actprovision to the contrary in this Agreement, non-negligent omission neither HFC nor the Shareholders shall have any liability to the Escrow Indemnified Parties with respect to any Damages that result, directly or non- negligent error indirectly, from the gross negligence or misconduct of the Escrow Agent;
(f) The Escrow Agent shall have no duties or responsibilities except those expressly set forth herein, no additional obligations of the Escrow Agent made shall be inferred from the terms of this Agreement or any other agreement, instrument or document and it shall not be bound by any modification of this Agreement unless in good faith in the conduct of its duties. writing and signed by all parties hereto or their respective successors-in-interest;
(g) The recitals of fact contained facts in the “Whereas” clauses herein this Agreement shall be taken as the statements of HFC or the CityShareholders, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereofsame. The Escrow Agent shall not be liable under no obligation or duty to perform any act which would involve it in connection with the performance an expense or liability or to institute or defend any suit in respect of this Agreement or to advance any of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the monies unless properly indemnified;
(h) The Escrow Agent shall be determined protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper or document reasonably believed by it to be genuine and to have been signed and presented by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may proper party or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewithparties. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, taking or omitting suffering any action under this Escrow Agreement, such matter may be deemed to be conclusively proved and established by a certificate signed by an officer of HFC and the City. Notwithstanding anything Shareholders, and such certificate shall be full warranty for any action taken or suffered in this Escrow Agreement to good faith under the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision provisions of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. Agreement;
(i) The Escrow Agent may conclusively rely and shall be fully protected does not have any interest in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Amount but is serving as Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, only and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointedhaving only possession thereof. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.This
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the 2011-A Escrow Fund to accomplish the refunding of the Refunded 2011-A Bonds or in the 2016-A Escrow Fund to accomplish the refunding of the Refunded 2016-A Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
Appears in 1 contract
Samples: Escrow Agreement
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the Agent's acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of its duties under this Escrow Agreement or by reason of any non-negligent actis subject to the following terms and conditions, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of which shall govern and control with respect to its rights, duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, liabilities and the Escrow Agent assumes no responsibility for the correctness thereof. immunities:
(a) The Escrow Agent makes no representation or warranty and has no responsibility as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of the Merger Agreement, the Support Agreement or any other agreement executed in connection with the Merger between the Stockholder, the Buyer and any other signatories thereto, and the agreements and documents referred to therein (other than this Escrow Agreement Agreement) (collectively, the "Agreements"), or as to the City andcorrectness of any statement contained therein, except as otherwise provided herein, and the Escrow Agent shall incur no liability not be required to inquire as to the performance of any obligation under the Agreements. The Escrow Agent is not bound by any agreement or document other than this Escrow Agreement.
(b) The Escrow Agent shall be protected in respect thereof. acting or failing to act upon any written notice, instruction, request, waiver, consent, receipt or other paper or document from any officer or authorized agent of the Buyer or the Stockholder, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth of any information therein contained and what it purports to be.
(c) The Escrow Agent shall not be liable for any error of judgment, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with the performance of its duties under this Escrow Agreement herewith, except for as may result from its own gross negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. .
(d) The Escrow Agent may consult with counsel, who may or may legal counsel selected by it (including any member of its firm) and shall not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of liable for any action taken, suffered taken or omitted by it in good faith in accordance therewithwith the advice of such counsel. Whenever Any fees and expenses of such counsel (which may be paid to retained attorneys or represents the fair value of legal services rendered to itself) shall be considered part of the fees and expenses described in Section 3 hereof.
(e) The Stockholder and the Buyer, jointly and severally, agree to indemnify the Escrow Agent against and save it harmless from any and all claims, liabilities, costs, payments and expenses, including reasonable fees and expenses of counsel either paid to retained attorneys (who may be selected by the Escrow Agent) or amounts representing the fair value of legal services rendered to itself, incurred as a result of or in connection with the performance of this Escrow Agreement (other than the costs of the preparation of this Escrow Agreement), except as a result of the Escrow Agent's own gross negligence or willful misconduct.
(f) The Escrow Agent shall have no duties or responsibilities except those expressly set forth herein. It shall not be bound by any modification of this Escrow Agreement unless in writing and signed by all the parties hereto and, if its duties as Escrow Agent hereunder are affected, unless it shall have given prior written consent thereto.
(g) The duties of the Escrow Agent hereunder are solely ministerial in nature, and the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, sufferingnot have any liability under, or omitting duty to inquire into, the terms and provisions of any action under other agreement or document including, but not limited to, the Agreements. Each of the Stockholder and the Buyer acknowledge that the Escrow Agent serves as counsel to the Stockholder and expressly waive any conflict of interest arising on account of such representation by the Escrow Agent and its service as the Escrow Agent hereunder. The participation of Swidler Berlin Shereff Friedman, XXX xs Escrow Agent ix xxxxx undertaken as an accommodation to the parties hereto and shall in no way hinder or limit the present or future ability of Swidler Berlin Shereff Friedman, XXX xo act as counsel xx xxx Stockholder with respect to any matter including, but not limited to, disputes between the Stockholder and the Buyer arising from the Agreements or with regard to this Escrow Agreement; provided, however, that such matter may representation shall not affect the Escrow Agent's obligations hereunder and shall be deemed to be conclusively established by a certificate signed by an officer at the cost and expense of the City. Notwithstanding anything in this Escrow Agreement to Stockholder.
(h) In the contrary, in no event shall case any property held by the Escrow Agent hereunder shall be liable for specialattached, indirect garnished or consequential loss levied upon by an order of court, or damage the delivery thereof shall be stayed or enjoined by an order of any kind whatsoever (including but not limited court, or any other writ, order, judgment or decree shall be entered or issued by any court affecting such property, or any part thereof, or any act of the Escrow Agent, the Escrow Agent is hereby expressly authorized in its sole discretion to lost profits)obey and comply with all writs, even orders, judgments or decrees so entered or issued, whether with or without jurisdiction, and if the Escrow Agent has been advised obeys and complies with any such writ, order, judgment or decree, it shall not be liable to any person, firm or corporation by reason of such loss compliance notwithstanding the fact that such writ, order, judgment or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend decree may be subsequently reversed, modified, annulled, set aside or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powersvacated. The Escrow Agent may conclusively rely and shall be fully protected agrees to notify the Buyer in acting or refraining from acting upon writing of its receipt of written notice to the effect that any resolutionthird party is asserting a lien, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval security interest or other paper or document believed by it right to be genuine and to have been signed or presented by the proper party or parties. Escrow Shares.
(i) The Escrow Agent may execute at any time resign and be discharged from its duties hereunder by providing written notice to the Stockholder and the Buyer and depositing the Escrow Shares with a successor escrow agent designated jointly by the Stockholder, on the one hand, and the Buyer, on the other. Upon receipt of the trusts or powers hereunder or perform any duties hereunder either directly or Escrow Agent's resignation, the Stockholder and the Buyer shall promptly appoint a successor escrow agent. If no successor shall have been appointed within ten business days after the mailing of notice of resignation by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidatedAgent, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be entitled to petition a partycourt of competent jurisdiction in New York, New York for the appointment of a successor escrow agent and transfer into the custody of that court or any bank, corporation or association succeeding to other court of competent jurisdiction all or substantially all of the corporate trust business any part of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingShares.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held (a) With respect to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the parties acknowledge and agree that Escrow Agent in accordance with the provisions of is acting solely as an independent escrow agent pursuant to this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereofAgreement. The Escrow Agent makes undertakes to perform only such duties as are expressly set forth herein and no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, other or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the further duties or responsibilities shall be implied.
(b) Escrow Agent shall incur no liability not be required to institute or defend any action involving any matters referred to herein or which affected it or its duties or liabilities hereunder unless required to do so by any party to this Agreement and then only upon receiving indemnity in accordance with Section 3.3 hereto, against any and all claims, liabilities and expenses in relation thereto. Except as otherwise contemplated by Section 3.2(c) hereof, Escrow Agent shall not be required to defend any legal proceedings which may be instituted against Escrow Agent in respect thereofto the subject matter hereof. The Except as otherwise contemplated by Section 3.2(c) hereof, in the event any action is instituted against Escrow Agent, Escrow Agent may interplead the parties hereto and may deposit the subject matter of this escrow into court and in such event Escrow Agent shall be relieved and/or discharged from any and all obligations and liabilities under and pursuant hereto subject to any required permission of the court in which such interpleader is filed.
(c) Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties so long as Escrow Agent complies with the terms of this Agreement. Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. Escrow Agent shall have no duty to solicit any payments which may be due it hereunder. Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered taken or omitted by it in good faith in accordance therewithexcept to the extent that a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to the Acquiror or Target Stockholders. Whenever Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. Escrow Agent shall deem not be liable for anything done, suffered or omitted in good faith by it necessary in accordance with the advice or desirable opinion of any such counsel, accountants or other skilled persons. In the event that a matter Escrow Agent shall be proved uncertain as to its duties or established prior rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to taking, suffering, or omitting refrain from taking any action under this Escrow Agreement, such matter may and its sole obligation shall be deemed to keep safely all property held in escrow until it shall be conclusively established directed otherwise in writing by all of the other parties hereto or by a certificate signed by an officer final order or judgment of the Citya court of competent jurisdiction. Notwithstanding anything Anything in this Escrow Agreement to the contrarycontrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not 4 limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which the parties hereto agree shall govern and control with respect to its rights, duties, liabilities and immunities:
(a) Except as to its due execution and delivery of the Agreement, it makes no representation and has no responsibility as to the validity of this Agreement or of any other instrument referred to herein, or as to the correctness of any statement contained herein, and it shall not be required to inquire as to the performance of any obligation under the Purchase Agreement;
(b) The Escrow Agent shall be protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth of any information therein contained, which it in good faith believes to be genuine and what it purports to be;
(c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection therewith, except its own gross negligence or misconduct;
(d) The Escrow Agent may consult with competent and responsible legal counsel selected by it, and it shall not be liable for any action taken or omitted by it in good faith in accordance with the advice of such counsel;
(e) Principal Holders, on the one hand, and Surviving Corporation, on the other hand, agree to indemnify and hold the Escrow Agent and its directors, employees, agents officers, agents, successors and servants shall not assigns (collectively, the "INDEMNIFIED PARTIES") harmless from and against any and all losses, claims, damages, liabilities and expenses (collectively, "DAMAGES"), including, without limitation, reasonable costs of investigation and counsel fees and expenses which may be held to any personal liability whatsoever, in tort, contract, imposed on the Escrow Agent or otherwise, incurred by it in connection with the execution and delivery performance of its duties hereunder. Such indemnity includes, without limitation, Damages incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Agreement or involving the subject matter hereof. The indemnification provisions contained in this paragraph shall survive the termination of this Escrow Agreement, Agreement or the establishment resignation or removal of the Escrow FundsAgent. Notwithstanding any provision to the contrary in this Agreement, neither the acceptance of Principal Holders, Holder Representative nor Surviving Corporation shall have any liability to the moneysIndemnified Parties with respect to any Damages that result, directly or indirectly, from the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds gross negligence or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error misconduct of the Escrow Agent;
(f) The Escrow Agent made shall have no duties or responsibilities except those expressly set forth herein, and it shall not be bound by any modification of this Agreement unless in good faith writing and signed by all parties hereto or their respective successors in the conduct of its duties. interest;
(g) The recitals of fact contained facts in the “Whereas” clauses herein this Agreement shall be taken as the statements of the CityPrincipal Holders and Surviving Corporation, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereofsame. The Escrow Agent shall not be liable under no obligation or duty to perform any act which would involve it in connection with the performance an expense or liability or to institute or defend any suit in respect of this Agreement or to advance any of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the moneys unless properly indemnified;
(h) The Escrow Agent shall be determined protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper or document reasonably believed by it to be genuine and to have been signed and presented by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may proper party or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewithparties. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, taking or omitting suffering any action under this Escrow Agreementagreement, such matter may be deemed to be conclusively inclusively proved and established by a certificate signed by an officer of the City. Notwithstanding anything Holder Representative and Surviving Corporation, and such certificate shall be full warranty for any action taken or suffered in this Escrow Agreement to good faith under the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision provisions of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. Agreement; and
(i) The Escrow Agent may conclusively rely and shall be fully protected does not have any interest in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Amount but is serving as Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, only and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointedhaving only possession thereof. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.This SECTION
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which the parties hereto hereby agree shall govern and control with respect to its employeesrights, agents duties, liabilities and servants shall not be held immunities.
(a) Except as to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the due execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent actAgent's officers duly authorized, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent it makes no representation and has no responsibility as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement or of any other instrument referred to herein, or as to the City andcorrectness of any statement contained herein, and it shall not be required to inquire as to the performance of any obligation under the Stock Sale Agreement.
(b) The Escrow Agent shall not be under any duty to give the Escrow Property held by it hereunder any greater degree of care than it gives to its own similar property and shall not be required to invest any funds held hereunder except as otherwise provided herein, directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(c) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall incur no liability in respect thereofbe read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(d) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (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 out of and in connection with this Agreement. 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 performance of terms hereof, including, without limitation, any liability for any delays (not resulting from its duties under this Escrow Agreement except for its own gross negligence or willful misconduct, and ) in the duties and obligations investment or reinvestment of the Escrow Property, or any loss of interest incident to any such delays.
(e) The Escrow Agent shall be determined by entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the express provisions authenticity of this Escrow Agreementthe correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and act in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered instrument or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document signature believed by it to be genuine and may assume that any person purporting to have give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been signed or presented by the proper party or parties. duly authorized to do so.
(f) The Escrow Agent may execute act pursuant to the advice of competent and responsible counsel with respect to any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, matter relating to this Agreement and shall not be responsible liable for any willful misconduct action taken or negligence on omitted in good faith in accordance with such advice.
(g) The Escrow Agent does not have any interest in the part of any agent, attorney, custodian Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. BHP Hawaii and Buyer shall pay or nominee so appointed. Any bank, corporation or association into which reimburse the Escrow Agent may be merged upon request for any transfer taxes or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation other taxes relating to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.Property incurred
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Agreement is subject to the following terms and conditions, which the parties to this Agreement hereby agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations Agent:
(a) The responsibilities of the Escrow Agent hereunder shall be determined by to act as agent and bailee for LTC and the express provisions Stockholders, to hold the Escrow Funds in safekeeping, to invest the funds pursuant to the instructions of this the Stockholders' Representative within the guidelines noted herein and to make disposition of the Escrow Agreement. Funds as provided herein;
(b) The Escrow Agent acts herein as agent and bailee for LTC and the Stockholders only, and does not undertake to construe the meaning of any contract, agreement or other instrument, or to determine any of the matters covered by the same. It is expressly understood and agreed that the Escrow Agent does not assume any of the obligations or duties which LTC or the Stockholders may consult with counselhave under the Purchase Agreement, who may this Escrow Agreement or may any other agreement, except to hold and dispose of the Escrow Funds as provided for herein;
(c) The Escrow Agent shall be protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document furnished to it, not be counsel only as to its due execution and the validity and effectiveness of its provisions, but also as to the City, truth and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect accuracy of any action takeninformation contained therein, suffered which it in good faith believes to be genuine and which is signed or omitted presented to it by a proper person, or upon evidence deemed by it in good faith to be sufficient; and
(d) So long as LTC or the Stockholders have any interest in accordance therewith. Whenever the Escrow Funds, (i) the Escrow Agent shall deem agrees that it necessary will not assert any right which it may have to setoff, recoupment, reduction or desirable other right with respect to the Escrow Funds now or hereafter acquired, arising from any relationship, debt, obligations, liability, credit accommodation or otherwise that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall owed the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on or any party having an interest in the part of any of Escrow Funds, (ii) the Escrow Agent shall provide the parties hereto where an instrument with such receipts, account statements, affidavits as they may from time to time request, and (iii) the Escrow Agent shall not move the Escrow Funds from the Escrow Account without the written consent of transfer or assignment is required by law to effect such succession, anything herein to all the contrary notwithstandingparties hereto in accordance with the terms of this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Lets Talk Cellular & Wireless Inc)
Responsibilities of Escrow Agent. The acceptance by Escrow Agent of his duties under this Escrow Agreement is subject to the following terms and its employeesconditions, agents which the parties to this Escrow Agreement hereby agree shall govern and servants control with respect to their rights, duties and liabilities with respect to the Escrow Agent.
1. Escrow Agent shall not be held liable to any personal liability whatsoeverparty hereto, in tort, contract, except for his owns gross negligence or otherwise, in connection willful misconduct. Escrow Agent may consult with the execution and delivery obtain advice for counsel of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held his choosing in the Escrow Funds to pay the Refunded Bonds or event any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation question arises as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bondsprovisions hereof or his duties hereunder, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the and Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting in good faith in accordance with the opinion and instructions of such counsel. Expenses incurred by Escrow Agent in consulting with such counsel shall be borne by Buyer.
2. Escrow Agent shall not in any way be bound or refraining from acting affected by any notice of modification or cancellation of this Escrow AGREEMENT UNLESS NOTICE THEREOF IS given to Escrow Agent by Seller and Buyer in accordance with the provisions of Paragraph 10 hereof, nor shall Escrow Agent be bound by any modification of his obligations hereunder unless the same shall be consented to by Escrow Agent in writing. Escrow Agent shall be entitled to rely upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consentjudgment, order, approval certification, demand, notice or other paper writing delivered to him hereunder without being required to determine the authenticity or document believed by it to be genuine and to have been signed the correctness of any fact stated therein, the propriety or presented by validity of the proper party service thereof or partiesthe jurisdiction of a Court issuing any such judgment or order. The Escrow Agent may execute act in reliance upon any instrument or signature reasonably believed by him to be genuine, and Escrow Agent may assume than any person purporting to give any notice or make any statement in connection with the provisions hereof has been duly authorized to do so.
3. This Escrow Agreement sets forth all of the trusts or powers hereunder or perform duties of the Escrow Agent with respect to any duties hereunder either directly or by or through agentsand all matters pertinent hereto. Except as otherwise expressly provided herein, attorneys, custodians or nominees appointed with due careEscrow Agent shall not refer to, and shall not be responsible for bound by, the provisions of any other agreement between the parties hereto.
4. Except with respect to claims based upon Escrow Agent's willful misconduct or negligence on the part of any agentgross negligence, attorney, custodian or nominee so appointed. Any bank, corporation or association into which Seller and Buyer shall indemnify and hold harmless the Escrow Agent may be merged from and against all claims, demands, losses, liabilities, costs and expenses, including without limitation, reasonable attorney fees, brought against or converted incurred by Escrow Agent in connection with the performance of his duties under this Escrow Agreement.
5. In the event of a disagreement between the parties to this Escrow Agreement resulting in adverse claims or demands being made in connection with which it may be consolidatedthe Escrowed Stock, or any bankin the event that the Escrow Agent, corporation or association resulting from any mergeracting in good faith, conversion or consolidation is in doubt as to which what action he should take hereunder, the Escrow Agent shall be a partymay, or any bankat his option, corporation or association succeeding refuse to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper comply with any party hereto claims or any further act demands on him until the part of any rights of the parties hereto shall have been fully and finally adjudicated by a Court of competent jurisdiction or all differences shall have been adjusted and all doubt resolved by written agreement executed by the parties hereto. If Escrow Agent files an interpleader action, Escrow Agent shall thereupon be fully released and discharged from all obligations and duties hereunder, except on for the part of any safekeeping of the parties hereto where an instrument of transfer or assignment is required by law to effect Escrowed Stock if not deposited with the Court in such succession, anything herein to the contrary notwithstandingaction.
Appears in 1 contract
Samples: Inventory Purchase Agreement (Globus International Resources Corp)
Responsibilities of Escrow Agent. The Escrow Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which the parties hereto agree shall govern and control with respect to Escrow Agent's rights, duties, liabilities and immunities:
(a) Except as to its due execution and delivery of the Agreement, the Escrow Agent makes no representation and has no responsibility as to the validity of this Agreement or of any other instrument referred to herein, or as to the correctness of any statement contained herein, and it shall not be required to inquire as to the performance of any obligation under Investment Agreement (as amended hereby);
(b) The Escrow Agent shall be protected in acting in reliance upon any instructions, notice, request, certification, demand, consent, authorization, receipt, power of attorney or other paper or document, without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order, which it in good faith believes to be genuine and what it purports to be;
(c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection therewith, except its own gross negligence, recklessness, or willful misconduct;
(d) The Escrow Agent may consult with competent and responsible legal counsel (including its own attorneys and internal attorneys) selected by it in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall not be liable for any action taken or omitted by it in good faith in accordance with the advice of such counsel. Biovest and Accentia shall reimburse the Escrow Agent on demand for amounts of such legal fees, disbursements and expenses;
(e) Biovest and Accentia, jointly and severally, agree to indemnify and hold the Escrow Agent and its members, employees, agents officers, agents, successors and servants shall not assigns (collectively, the "Indemnified Parties") harmless from and against any and all losses, claims, damages, liabilities and expenses (collectively, "Damages"), including, without limitation, reasonable costs of investigation and counsel fees and expenses which may be held to any personal liability whatsoever, in tort, contract, imposed on the Escrow Agent or otherwise, incurred by it in connection with the execution performance of its duties hereunder. Such indemnity includes, without limitation, Damages incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Agreement or involving the subject matter hereof. The indemnification provisions contained in this paragraph are in addition to any other rights any of the Indemnified Parties may have by law or otherwise and delivery shall survive the termination of this Escrow Agreement, Agreement or the establishment resignation or removal of the Escrow FundsAgent. Notwithstanding any provision to the contrary in this Agreement, no party hereto shall have any liability to the acceptance of Indemnified Parties with respect to any Damages that result, directly or indirectly, from the moneysgross negligence, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds recklessness, or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error willful misconduct of the Escrow Agent;
(f) The Escrow Agent made shall have no duties or responsibilities except those expressly set forth herein, and it shall not be bound by any modification of this Agreement unless in good faith writing and signed by all parties hereto or their respective successors in the conduct of its duties. interest;
(g) The recitals of fact contained facts in the “Whereas” clauses herein this Agreement shall be taken as the statements of Biovest and Accentia, as the Citycase may be, and the Escrow Agent assumes no responsibility for the correctness thereofof the same. The Escrow Agent makes shall be under no representation as obligation or duty to perform any act which would involve it in an expense or liability or to institute or defend any suit in respect of this Agreement or to advance any of its own monies unless, in its sole discretion, the sufficiency parties confirm the indemnity herein provided;
(h) The Escrow Agent shall be protected in acting in reliance upon any instructions, notice, request, certification, deed, consent, authorization, receipt, power of attorney or other paper or document reasonably believed by it to be genuine and to have been signed and presented by the proper party or parties. Without limiting the generality of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided hereinforegoing, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and protected in reliance upon the written opinion signatures appearing on the signature pages hereof as specimen signatures of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewiththe parties hereto. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, taking or omitting suffering any action under this Escrow Agreement, such matter may be deemed to be conclusively inclusively proved and established by a certificate signed by an officer another party hereto, and such certificate shall constitute a full warranty for any action taken or suffered in good faith under the provisions of this Agreement;
(i) The Escrow Agent shall be under no duty to give the City. Notwithstanding anything property held in this Escrow Agreement to the contrary, in no event shall escrow by it hereunder any greater degree of care than it gives its own similar property;
(j) Biovest and Accentia acknowledge that (i) the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited is counsel to lost profits), even if the Escrow Agent has been advised of such loss or damage Biovest and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which agree that the Escrow Agent may be merged continue to represent Biovest, whether in any dispute, controversy, action or converted legal proceeding (including, without limitation, against Accentia or with which it may be consolidatedinvolving this Agreement and/or the Investment Agreement, or any bank, corporation or association resulting from any merger, conversion or consolidation to which otherwise and (ii) the Escrow Agent is entitled to receive amounts under the Secured Note and, notwithstanding Escrow Agent's status as an escrow agent hereunder, Escrow Agent shall continue to be a party, or any bank, corporation or association succeeding entitled to all or substantially all of its rights remedies and benefits as a payee and secured party under the Secured Note (including, without limitation, the right to convert principal and accrued and unpaid interest thereon into equity of Biovest and/or Accentia in accordance with the terms of the corporate trust business Secured Note); and
(k) The Escrow Agent does not have any interest in the Escrowed Items but is serving as Escrow Agent only and having only possession thereof. This Section 5.2(k) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.Agent. SECTION VI ---------- Miscellaneous -------------
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which shall govern and control with respect to its rights, duties, liabilities and immunities:
4.1 The Escrow Agent makes no representations or warranties and its employeeshas no responsibilities as to the correctness of any statement contained herein, agents and servants the Escrow Agent shall not be held required to inquire as to the performance of any personal liability whatsoeverobligation under any agreement or document other than this Agreement.
4.2 The Escrow Agent shall be protected in acting upon any written notice, in tortrequest, contractwaiver, consent, receipt or otherwiseother paper or document from either Buyer or Seller, in connection with the not only as to its due execution and delivery the validity and effectiveness of this its provisions, but also as to the truth of any information therein contained and what it purports to be. The Escrow AgreementAgent shall be entitled to rely upon any order, the establishment of the Escrow Fundsjudgment, the acceptance of the moneyscertification, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any paymentdemand, transfer instruction, notice, instrument or other application of moneys or obligations by the Escrow Agent writing delivered to it in accordance compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. 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 reason of it, without independent investigation, to be genuine and may assume that any non-negligent act, non-negligent omission person purporting to give notice or non- negligent error advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
4.3 The sole duty of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses Agent, other than as herein specified, shall be taken to receive the Initial Deposit and hold it and any interest earned thereon subject to release, in accordance with the written instructions of Buyer and Seller or as the statements of the Cityotherwise provided for herein, and the Escrow Agent assumes shall be under no responsibility for duty to determine whether the correctness thereofBuyer and/or Seller are complying with requirements of the Merger Agreement. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions of any agreement beyond the specific terms hereof. The Escrow Agent makes shall have no representation as duties or responsibilities except those expressly set forth herein and shall neither be obligated to the sufficiency of the moneys held in the Escrow Fund recognize nor have any liability or responsibility arising under any other agreement to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, which the Escrow Agent shall incur no liability in respect thereofis not a party, even though reference thereto may be made herein. The Escrow Agent shall not be required to inquire as to the performance of any obligation under any agreement or document, including, without limitation, the Merger Agreement or any agreements and documents referred to herein or therein nor shall the Escrow Agent be under any obligation to take any legal action in connection with this Agreement or towards its enforcement or performance or to appear in, prosecute or defend any action or legal proceeding in connection herewith.
4.4 Except as set forth in Sections 4.6, 4.7 and 8, the Escrow Agent does not have any interest in the Deposit, but is serving as escrow holder only and has only possession thereof.
4.5 The Escrow Agent shall not be liable for any error of judgment, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except as may result from its own gross negligence or willful misconduct.
4.6 The Escrow Agent may consult with legal counsel selected by it and shall not be liable for any action taken or omitted by it in accordance with the advice of such counsel. If the Escrow Agent becomes involved in litigation on account of this Agreement, it shall have the right to retain counsel and shall have a first lien on the property deposited hereunder for any and all costs, attorneys' fees, charges, disbursements and expenses in connection with such litigation; and shall be entitled to reimburse itself therefor out of the property deposited hereunder, and if it shall be unable to reimburse itself from the property deposited hereunder, the parties hereto jointly and severally agree to pay to the Escrow Agent on demand its reasonable charges, counsel and attorneys' fees, disbursements, and expenses in connection with such litigation. Notwithstanding the foregoing and any statement made in Section 4.7, if the litigation or other proceeding in respect of which the Escrow Agent is entitled to reimbursement arose from a claim by Buyer against Seller or by Seller against Buyer, then the losing party to such litigation (the "Losing Party") only shall bear the Escrow Agent's attorneys' fees, charges, disbursements and expenses in connection with such litigation or other proceeding. The Losing Party also agrees (i) to bear the attorneys' fees, charges, disbursements and expenses of the party prevailing in such litigation or other proceeding (the "Prevailing Party") and (ii) to indemnify the Prevailing Party for any portion of the Deposit to which the Prevailing Party would otherwise be entitled but for the use by the Escrow Agent of such funds to pay the attorneys' fees, charges, disbursements and expenses of such litigation or other proceeding.
4.7 The Buyer and Seller, jointly and severally, agree to indemnify the Escrow Agent against and save it harmless from any and all claims, liabilities, costs, payments and expenses, including reasonable fees and expenses of counsel (who may be selected by the Escrow Agent), incurred as a result of or in connection with the performance of its duties under this Agreement, except as a result of the Escrow Agreement except for its Agent's own gross negligence or willful misconduct; provided, that costs and expenses shall be advanced to the Escrow Agent until a final unappealable determination has been made that the Escrow Agent is not entitled to indemnification. The Escrow Agent shall have a first lien on the property deposited hereunder for any and all amounts due under this Section; and shall be entitled to reimburse itself therefor out of the property deposited hereunder if such amounts have not been paid within thirty (30) calendar days of a written demand.
4.8 The duties and obligations of the Escrow Agent hereunder are solely ministerial in nature, and the Escrow Agent shall not have any liability under, or duty to inquire into, the terms and provisions of any other agreement or document.
4.9 If any property held by the Escrow Agent hereunder shall be determined attached, garnished or levied upon under an order of court, or the delivery thereof shall be stayed or enjoined by any order of court, or any other writ, order, judgment or decree shall be entered or issued by any court affecting such property, or any part thereof, or any act of the Escrow Agent, then the Escrow Agent is hereby expressly authorized to use its sole discretion to obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, and in the case the Escrow Agent obeys and complies with any such writ, order, judgment or decree, it shall not be liable to any person, firm or corporation by reason of such compliance notwithstanding the fact that such writ, order, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
4.10 The parties recognize and agree that the Escrow Agent will not provide supervision, recommendations or advice relating to either the investment of moneys held in the Deposit Escrow Account or the purchase, sale, retention or other disposition of any investment. Interest and other earnings on investments shall be added to the Deposit Escrow Account. Any loss or expense incurred as a result of an investment will be borne by the express provisions of this Deposit Escrow AgreementAccount. The Escrow Agent may consult with counsel, who may is hereby authorized to execute purchases and sales of investments through the facilities of its own trading or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect capital markets operations or those of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powersaffiliated entity. The Escrow Agent shall send statements to each of the other parties hereto on a monthly basis reflecting activity in the Deposit Escrow Account for the preceding month. Although each of the other parties recognizes that it may conclusively rely and shall be fully protected in acting obtain a broker confirmation or refraining from acting upon any resolutionwritten statement containing comparable information at no additional cost, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it such parties hereby agree that confirmations of investments are not required to be genuine and to have been signed or presented issued by the proper party or parties. The Escrow Agent may execute any of for each month in which a monthly statement is rendered. However, no statement need be rendered for the trusts Deposit Escrow Account if no activity occurred for such month.
4.11 Any banking association or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or merged, converted or with which it the Escrow Agent may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, banking association or corporation or association succeeding to which all or substantially all any part of the corporate trust business of the Escrow Agent shall be the successor of transferred, shall succeed to all the Escrow Agent Agent's rights, obligations and immunities hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such successionhereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow FundsFund, the acceptance of the moneysmoneys and Escrow Securities deposited therein, the sufficiency purchase of the moneys held in Escrow Securities or the retention of the Escrow Funds to pay the Refunded Bonds Securities, or any payment, transfer or other application of moneys or obligations Escrow Securities by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “"Whereas” " clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereofthereof or the correctness of any recitals or statements contained in the Series 2009 Bonds. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, misconduct and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Agreement. The Escrow AgreementAgent shall be under no obligation to inquire into or be in any way responsible for the performance or nonperformance by the City of its obligations. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder or in the exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or powers (other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible than as expressly provided for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingherein).
Appears in 1 contract
Samples: Escrow Agreement
Responsibilities of Escrow Agent. The Escrow Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which shall govern and control with respect to its rights, duties, liabilities and immunities: The Escrow Agent makes no representations or warranties and its employeeshas no responsibilities as to the correctness of any statement contained herein, agents and servants the Escrow Agent shall not be held required to inquire as to the performance of any personal liability whatsoeverobligation under any agreement or document other than this Agreement. The Escrow Agent shall be protected in acting upon any written notice, in tortrequest, contractwaiver, consent, receipt or otherwiseother paper or document from either Buyer or HGHC, in connection with the not only as to its due execution and delivery the validity and effectiveness of this its provisions, but also as to the truth of any information therein contained and what it purports to be. The Escrow AgreementAgent shall be entitled to rely upon any order, the establishment of the Escrow Fundsjudgment, the acceptance of the moneyscertification, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any paymentdemand, transfer instruction, notice, instrument or other application of moneys or obligations by the Escrow Agent writing delivered to it in accordance compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. 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 reason of it, without independent investigation, to be genuine and may assume that any non-negligent act, non-negligent omission person purporting to give notice or non- negligent error advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The sole duty of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses Agent, other than as herein specified, shall be taken to receive the Initial Retention Bonus Amount and hold it and any interest earned thereon subject to release, in accordance with the written instructions of Buyer or HGHC or as the statements of the Cityotherwise provided for herein, and the Escrow Agent assumes shall be under no responsibility for duty to determine whether the correctness thereofBuyer and/or HGHC are complying with requirements of the Merger Agreement. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions of any agreement beyond the specific terms hereof. The Escrow Agent makes shall have no representation duties or responsibilities except those expressly set forth herein and shall neither be obligated to recognize nor have any liability or responsibility arising under any other agreement to which the Escrow Agent is not a party, even though reference thereto may be made herein. The Escrow Agent shall not be required to inquire as to the sufficiency performance of any obligation under any agreement or document, including, without limitation, the moneys held in Merger Agreement or any agreements and documents referred to herein or therein nor shall the Escrow Fund Agent be under any obligation to accomplish the refunding of the Refunded Bonds, take any legal action in connection with this Agreement or towards its enforcement or performance or to the validity of this Escrow Agreement appear in, prosecute or defend any action or legal proceeding in connection herewith. Except as to the City andset forth in Sections 4.6, except as otherwise provided herein4.7 and 8, the Escrow Agent shall incur no liability does not have any interest in respect the Retention Bonus Amount, but is serving as escrow holder only and has only possession thereof. The Escrow Agent shall not be liable for any error of judgment, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with the performance of its duties under this Escrow Agreement herewith, except for as may result from its own gross negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may legal counsel selected by it and shall not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of liable for any action taken, suffered taken or omitted by it in good faith accordance with the advice of such counsel. If the Escrow Agent becomes involved in accordance therewithlitigation on account of this Agreement, it shall have the right to retain counsel and shall have a first lien on the property deposited hereunder for any and all costs, attorneys' fees, charges, disbursements and expenses in connection with such litigation; and shall be entitled to reimburse itself therefor out of the property deposited hereunder, and if it shall be unable to reimburse itself from the property deposited hereunder, the parties hereto jointly and severally agree to pay to the Escrow Agent on demand its reasonable charges, counsel and attorneys' fees, disbursements, and expenses in connection with such litigation. Whenever Notwithstanding the foregoing and any statement made in Section 4.7, if the litigation or other proceeding in respect of which the Escrow Agent is entitled to reimbursement arose from a claim by Buyer against HGHC or HGHC against Buyer, then the losing party to such litigation (the "Losing Party") only shall bear the Escrow Agent's attorneys' fees, charges, disbursements and expenses in connection with such litigation or other proceeding. The Losing Party also agrees (i) to bear the attorneys' fees, charges, disbursements and expenses of the party prevailing in such litigation or other proceeding (the "Prevailing Party") and (ii) to indemnify the Prevailing Party for any portion of the Retention Bonus Amount to which the Prevailing Party would otherwise be entitled but for the use by the Escrow Agent of such funds to pay the attorneys' fees, charges, disbursements and expenses of such litigation or other proceeding. The Buyer and HGHC, jointly and severally, agree to indemnify the Escrow Agent against and save it harmless from any and all claims, liabilities, costs, payments and expenses, including reasonable fees and expenses of counsel (who may be selected by the Escrow Agent), incurred as a result of or in connection with the performance of this Agreement, except as a result of the Escrow Agent's own gross negligence or willful misconduct; provided, that costs and expenses shall be advanced to the Escrow Agent until a final unappealable determination has been made that the Escrow Agent is not entitled to indemnification. The Escrow Agent shall have a first lien on the property deposited hereunder for any and all amounts due under this Section; and shall be entitled to reimburse itself therefor out of the property deposited hereunder if such amounts have not been paid within thirty (30) calendar days of a written demand. The duties of the Escrow Agent hereunder are solely ministerial in nature, and the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, sufferingnot have any liability under, or omitting duty to inquire into, the terms and provisions of any action under this Escrow Agreement, such matter may be deemed to be conclusively established other agreement or document. If any property held by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent hereunder shall be liable for specialattached, indirect garnished or consequential loss levied upon under an order of court, or damage the delivery thereof shall be stayed or enjoined by any order of court, or any kind whatsoever (including but not limited to lost profits)other writ, even if order, judgment or decree shall be entered or issued by any court affecting such property, or any part thereof, or any act of the Escrow Agent, then the Escrow Agent has been advised of such loss is hereby expressly authorized to use its sole discretion to obey and comply with all writs, orders, judgments or damage decrees so entered or issued, whether with or without jurisdiction, and regardless of in the form of action. No provision of this Escrow Agreement shall require case the Escrow Agent obeys and complies with any such writ, order, judgment or decree, it shall not be liable to expend any person, firm or risk its own funds corporation by reason of such compliance notwithstanding the fact that such writ, order, judgment or otherwise incur any financial liability decree may be subsequently reversed, modified, annulled, set aside or vacated. The parties recognize and agree that the Escrow Agent will not provide supervision, recommendations or advice relating to either the investment of moneys held in the performance Bonus Escrow Account or exercise the purchase, sale, retention or other disposition of any investment. Interest and other earnings on investments shall be added to the Bonus Escrow Account. Any loss or expense incurred as a result of its duties hereunder, or in an investment will be borne by the exercise of its rights or powersBonus Escrow Account. The Escrow Agent may conclusively rely is hereby authorized to execute purchases and shall be fully protected in acting sales of investments through the facilities of its own trading or refraining from acting upon capital markets operations or those of any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesaffiliated entity. The Escrow Agent may execute any shall send statements to each of the trusts other parties hereto on a monthly basis reflecting activity in the Bonus Escrow Account for the preceding month. Although each of the other parties recognizes that it may obtain a broker confirmation or powers hereunder or perform any duties hereunder either directly or written statement containing comparable information at no additional cost, such parties hereby agree that confirmations of investments are not required to be issued by or through agentsthe Escrow Agent for each month in which a monthly statement is rendered. However, attorneys, custodians or nominees appointed with due care, and shall not no statement need be responsible rendered for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointedBonus Escrow Account if no activity occurred for such month. Any bank, banking association or corporation or association into which the Escrow Agent may be merged or merged, converted or with which it the Escrow Agent may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, banking association or corporation or association succeeding to which all or substantially all any part of the corporate trust business of the Escrow Agent shall be the successor of transferred, shall succeed to all the Escrow Agent Agent's rights, obligations and immunities hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such successionhereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which shall govern and control with respect to its rights, duties, liabilities and immunities:
(a) The Escrow Agent makes no representations or warranties and its employeeshas no responsibilities as to the correctness of any statement contained herein, agents and servants the Escrow Agent shall not be held required to inquire as to the performance of any personal liability whatsoeverobligation under any agreement or document other than this Agreement.
(b) The Escrow Agent shall be protected in acting upon any written notice, in tortrequest, contractwaiver, consent, receipt or otherwiseother paper or document from either Buyer or Seller, in connection with the not only as to its due execution and delivery the validity and effectiveness of this its provisions, but also as to the truth of any information therein contained and what it purports to be. The Escrow AgreementAgent shall be entitled to rely upon any order, the establishment of the Escrow Fundsjudgment, the acceptance of the moneyscertification, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any paymentdemand, transfer instruction, notice, instrument or other application of moneys or obligations by the Escrow Agent writing delivered to it in accordance compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. 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 reason of it, without independent investigation, to be genuine and may assume that any non-negligent act, non-negligent omission person purporting to give notice or non- negligent error advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(c) The sole duty of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses Agent, other than as herein specified, shall be taken to receive the Initial Deposit and hold it and any interest earned thereon subject to release, in accordance with the written instructions of Buyer and Seller or as the statements of the Cityotherwise provided for herein, and the Escrow Agent assumes shall be under no responsibility for duty to determine whether the correctness thereofBuyer and/or Seller are complying with requirements of the Merger Agreement. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions of any agreement beyond the specific terms hereof. The Escrow Agent makes shall have no representation as duties or responsibilities except those expressly set forth herein and shall neither be obligated to the sufficiency of the moneys held in the Escrow Fund recognize nor have any liability or responsibility arising under any other agreement to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, which the Escrow Agent shall incur no liability in respect thereofis not a party, even though reference thereto may be made herein. The Escrow Agent shall not be required to inquire as to the performance of any obligation under any agreement or document, including, without limitation, the Merger Agreement or any agreements and documents referred to herein or therein nor shall the Escrow Agent be under any obligation to take any legal action in connection with this Agreement or towards its enforcement or performance or to appear in, prosecute or defend any action or legal proceeding in connection herewith.
(d) Except as set forth in Sections 4.6, 4.7 and 8, the Escrow Agent does not have any interest in the Deposit, but is serving as escrow holder only and has only possession thereof.
(e) The Escrow Agent shall not be liable for any error of judgment, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except as may result from its own gross negligence or willful misconduct.
(f) The Escrow Agent may consult with legal counsel selected by it and shall not be liable for any action taken or omitted by it in accordance with the advice of such counsel. If the Escrow Agent becomes involved in litigation on account of this Agreement, it shall have the right to retain counsel and shall have a first lien on the property deposited hereunder for any and all costs, attorneys' fees, charges, disbursements and expenses in connection with such litigation; and shall be entitled to reimburse itself therefor out of the property deposited hereunder, and if it shall be unable to reimburse itself from the property deposited hereunder, the parties hereto jointly and severally agree to pay to the Escrow Agent on demand its reasonable charges, counsel and attorneys' fees, disbursements, and expenses in connection with such litigation. Notwithstanding the foregoing and any statement made in Section 4.7, if the litigation or other proceeding in respect of which the Escrow Agent is entitled to reimbursement arose from a claim by Buyer against Seller or by Seller against Buyer, then the losing party to such litigation (the "Losing Party") only shall bear the Escrow Agent's attorneys' fees, charges, disbursements and expenses in connection with such litigation or other proceeding. The Losing Party also agrees (i) to bear the attorneys' fees, charges, disbursements and expenses of the party prevailing in such litigation or other proceeding (the "Prevailing Party") and (ii) to indemnify the Prevailing Party for any portion of the Deposit to which the Prevailing Party would otherwise be entitled but for the use by the Escrow Agent of such funds to pay the attorneys' fees, charges, disbursements and expenses of such litigation or other proceeding.
(g) The Buyer and Seller, jointly and severally, agree to indemnify the Escrow Agent against and save it harmless from any and all claims, liabilities, costs, payments and expenses, including reasonable fees and expenses of counsel (who may be selected by the Escrow Agent), incurred as a result of or in connection with the performance of its duties under this Agreement, except as a result of the Escrow Agreement except for its Agent's own gross negligence or willful misconduct; provided, that costs and expenses shall be advanced to the Escrow Agent until a final unappealable determination has been made that the Escrow Agent is not entitled to indemnification. The Escrow Agent shall have a first lien on the property deposited hereunder for any and all amounts due under this Section; and shall be entitled to reimburse itself therefor out of the property deposited hereunder if such amounts have not been paid within thirty (30) calendar days of a written demand.
(h) The duties and obligations of the Escrow Agent hereunder are solely ministerial in nature, and the Escrow Agent shall not have any liability under, or duty to inquire into, the terms and provisions of any other agreement or document.
(i) If any property held by the Escrow Agent hereunder shall be determined attached, garnished or levied upon under an order of court, or the delivery thereof shall be stayed or enjoined by any order of court, or any other writ, order, judgment or decree shall be entered or issued by any court affecting such property, or any part thereof, or any act of the Escrow Agent, then the 77 Escrow Agent is hereby expressly authorized to use its sole discretion to obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, and in the case the Escrow Agent obeys and complies with any such writ, order, judgment or decree, it shall not be liable to any person, firm or corporation by reason of such compliance notwithstanding the fact that such writ, order, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(j) The parties recognize and agree that the Escrow Agent will not provide supervision, recommendations or advice relating to either the investment of moneys held in the Deposit Escrow Account or the purchase, sale, retention or other disposition of any investment. Interest and other earnings on investments shall be added to the Deposit Escrow Account. Any loss or expense incurred as a result of an investment will be borne by the express provisions of this Deposit Escrow AgreementAccount. The Escrow Agent may consult with counsel, who may is hereby authorized to execute purchases and sales of investments through the facilities of its own trading or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect capital markets operations or those of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powersaffiliated entity. The Escrow Agent shall send statements to each of the other parties hereto on a monthly basis reflecting activity in the Deposit Escrow Account for the preceding month. Although each of the other parties recognizes that it may conclusively rely and shall be fully protected in acting obtain a broker confirmation or refraining from acting upon any resolutionwritten statement containing comparable information at no additional cost, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it such parties hereby agree that confirmations of investments are not required to be genuine and to have been signed or presented issued by the proper party or parties. The Escrow Agent may execute any of for each month in which a monthly statement is rendered. However, no statement need be rendered for the trusts Deposit Escrow Account if no activity occurred for such month.
(k) Any banking association or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or merged, converted or with which it the Escrow Agent may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, banking association or corporation or association succeeding to which all or substantially all any part of the corporate trust business of the Escrow Agent shall be the successor of transferred, shall succeed to all the Escrow Agent Agent's rights, obligations and immunities hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such successionhereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow FundsFund, the acceptance of the moneysmoneys or securities deposited therein, the retention of the Federal Securities or the proceeds thereof, the sufficiency of the moneys held in the Escrow Funds Federal Securities to pay the Refunded Bonds 2010 Certificates or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- non-negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the CityDistrict, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund proceeds to accomplish the refunding of the Refunded Bonds, 2010 Certificates or to the validity of this Escrow Agreement as to the City District and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or negligence, willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the CityDistrict, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the CityDistrict. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless None of the form of action. No provision provisions of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise to incur any liability, financial liability or otherwise, in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Samples: Escrow Agreement
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Agreement is subject to the following terms and conditions, which the parties to this Agreement hereby agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations Agent:
(a) The responsibilities of the Escrow Agent hereunder shall be determined by to act as agent and bailee for LTC and the express provisions Selling Parties, to hold the Escrow Funds in safekeeping, to invest the funds pursuant to the instructions of this the Seller within the guidelines noted herein and to make disposition of the Escrow Agreement. Funds as provided herein;
(b) The Escrow Agent acts herein as agent and bailee for LTC and the Selling Parties only, and does not undertake to construe the meaning of any contract, agreement or other instrument, or to determine any of the matters covered by the same. It is expressly understood and agreed that the Escrow Agent does not assume any of the obligations or duties which LTC or the Selling Parties may consult with counselhave under the Purchase Agreement, who may this Escrow Agreement or may any other agreement, except to hold and dispose of the Escrow Funds as provided for herein;
(c) The Escrow Agent shall be protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document furnished to it, not be counsel only as to its due execution and the validity and effectiveness of its provisions, but also as to the City, truth and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect accuracy of any action takeninformation contained therein, suffered which it in good faith believes to be genuine and which is signed or omitted presented to it by a proper person, or upon evidence deemed by it in good faith to be sufficient; and
(d) So long as LTC or the Selling Parties have any interest in accordance therewith. Whenever the Escrow Funds, (i) the Escrow Agent shall deem agrees that it necessary will not assert any right which it may have to setoff, recoupment, reduction or desirable other right with respect to the Escrow Funds now or hereafter acquired, arising from any relationship, debt, obligations, liability, credit accommodation or otherwise that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall owed the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on or any party having an interest in the part of any of Escrow Funds, (ii) the Escrow Agent shall provide the parties hereto where an instrument with such receipts, account statements, affidavits as they may from time to time request, and (iii) the Escrow Agent shall not move the Escrow Funds from the Escrow Account without the written consent of transfer or assignment is required by law to effect such succession, anything herein to all the contrary notwithstandingparties hereto in accordance with the terms of this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lets Talk Cellular & Wireless Inc)
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow FundsFund, the acceptance of the moneysmoneys or securities deposited therein, the purchase of the Defeasance Securities, the retention of the Defeasance Securities or the proceeds thereof, the sufficiency of the moneys held in the Escrow Funds Defeasance Securities to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- non-negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund Defeasance Securities to accomplish the refunding of the Refunded Bonds, Bonds or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence negligence, willful misconduct or willful misconductdefault, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be he deemed to be he conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
Appears in 1 contract
Samples: Escrow Agreement
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow FundsFund, the acceptance of the moneys, the sufficiency of the moneys held in the 2007-A Escrow Funds Fund to pay the Refunded 2007-A Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the 2007-A Escrow Fund to accomplish the refunding of the Refunded Bonds, 2007-A Bonds or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
Appears in 1 contract
Samples: Escrow Agreement
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow FundsFund, the acceptance of the moneysmoneys or securities deposited therein, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- non-negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the CitySuccessor Agency, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund proceeds to accomplish the refunding of the Refunded Bonds, 1998 Bonds or to the validity of this Escrow Agreement as to the City Successor Agency and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence negligence, willful misconduct or willful misconductdefault, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the CitySuccessor Agency, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingSuccessor Agency.
Appears in 1 contract
Samples: Escrow Agreement
Responsibilities of Escrow Agent. The (a) Escrow Agent and its employees, agents and servants shall will not be held liable for actions or omissions hereunder, except for its own gross negligence or willful misconduct or material breach of this Agreement and, except with respect to claims based upon such gross negligence or willful misconduct or material breach of this Agreement that are successfully asserted against Escrow Agent, the Emdeon Entities and the Members’ Representative, on behalf of the Escrow Beneficiary Members, shall jointly and severally indemnify and hold harmless Escrow Agent (and any personal successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with this Agreement. In the event that the Emdeon Entities or the Members’ Representative, on behalf of the Escrow Beneficiary Members, make any payment or incur any liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of indemnities granted to the Escrow Agent under this Escrow AgreementSection 5(a), such indemnifying party shall be entitled to contribution from the other indemnifying party or parties so that, in all cases, the establishment Emdeon Entities and the Members’ Representative, on behalf of the Escrow Funds, the acceptance Beneficiary Members (collectively) each bear 50% of the moneys, cost of such indemnification (except to the sufficiency extent that such damages arise out of the moneys held gross negligence, willful misconduct or breach of this Agreement by the Emdeon Entities or the Members’ Representative, as applicable, in which case either such party(ies) will be responsible for 100% of the cost of indemnification).
(b) Escrow Funds Agent will be entitled to pay the Refunded Bonds or rely upon any paymentorder, transfer judgment, certification, demand, notice, instrument or other application writing delivered to it hereunder without being required to determine the authenticity or the correctness of moneys any fact stated therein or obligations by the propriety or validity of the service thereof. Escrow Agent may act in accordance with reliance upon any instrument or signature believed by it to be genuine and may assume that the provisions of this Escrow Agreement person purporting to give receipt or by reason of advice or make any non-negligent act, non-negligent omission statement or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable execute any document in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreementhereof has been duly authorized to do so. The Escrow Agent may consult conclusively presume that the undersigned representative of any party that is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(c) Escrow Agent may act pursuant to the advice of counsel with counsel, who may or may respect to any matter relating to this Agreement and will not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of liable for any action taken, suffered taken or omitted by it in good faith in accordance therewith. Whenever with such advice.
(d) Escrow Agent does not have any interest in the Escrow Fund but is serving as escrow holder only and has only possession thereof.
(e) This Agreement expressly sets forth all the duties of Escrow Agent shall deem it necessary with respect to any and all matters pertinent hereto. No implied duties or desirable that obligations will be read into this Agreement against Escrow Agent. Escrow Agent will have no liability or duty to inquire into the terms and conditions of any agreements (including the Merger Agreement) to which Escrow Agent is not a matter be proved or established prior to takingparty, suffering, or omitting any action its duties under this Escrow Agreement, such matter may be deemed Agreement being understood to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything purely ministerial in this nature.
(f) Escrow Agreement Agent makes no representation as to the contraryvalidity, value, genuineness or collectibility of any security or other document or instrument held by or delivered to it.
(g) In the event of any disagreement between the Emdeon Entities and the Members’ Representative resulting in no event shall adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent will be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited entitled to lost profits), even if retain the Escrow Fund until Escrow Agent has been advised of such loss or damage and regardless received (i) joint written instructions of the form Members’ Representative and Emdeon Entities or (ii) a final, nonappealable order of action. No provision a court of this Escrow Agreement shall require competent jurisdiction accompanied by a legal opinion by counsel for the Escrow Agent presenting party that the order is final and nonappealable or that the time to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where file an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingappeal has expired.
Appears in 1 contract
Samples: Merger Agreement (Emdeon Inc.)
Responsibilities of Escrow Agent. The Escrow Agent’s acceptance of its duties under this Agreement is subject to the following terms and conditions, which the parties hereto agree will govern and control with respect to its rights, duties, liabilities and immunities:
(a) The Escrow Agent will not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconduct. In no event shall the Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages.
(b) The Escrow Agent may consult with legal counsel selected by it, and it will not be liable for any action taken or omitted by it in good faith in accordance with the advice of such counsel.
(c) The Escrow Agent will have no discretion whatsoever with respect to the management, disposition or investment of the Escrow Deposit and is not a trustee or fiduciary to Merge or Xxxxxxx.
(d) Merge and Xxxxxxx agree jointly and severally to indemnify and hold the Escrow Agent and its directors, employees, agents officers, agents, successors and servants shall not assigns (collectively, the “Indemnified Parties”) harmless from and against any and all losses, claims, damages, liabilities and expenses (collectively, “Damages”), including, without limitation, reasonable costs of investigation and counsel fees and expenses which may be held to any personal liability whatsoever, in tort, contractimposed on the Escrow Agent or such persons, or otherwiseincurred by them, directly or indirectly, in connection with this Agreement or the execution and delivery Escrow Agent’s acceptance of this appointment as the Escrow AgreementAgent hereunder or the performance of its duties hereunder. Such indemnity includes, without limitation, Damages incurred in connection with any litigation (whether at the establishment trial or appellate levels) arising from this Agreement or involving the subject matter hereof. The indemnification provisions contained in this paragraph are in addition to any other rights any of the Indemnified Parties may have by law or otherwise and will survive the termination of this Agreement or the resignation or removal of the Escrow FundsAgent. Notwithstanding any provision to the contrary in this Agreement, Merge and Xxxxxxx will have no liability to the acceptance of Indemnified Parties with respect to any Damages that result, directly or indirectly, from the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds gross negligence or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error willful misconduct of the Escrow Agent made in good faith or such Indemnified Party.
(e) The Escrow Agent’s duties and obligations hereunder shall be determined solely by the express provisions of this Agreement. The Escrow Agent shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. The Escrow Agent is not charged with any duties or responsibilities with respect to the Purchase Agreement and shall not be required to take notice of the Purchase Agreement, except to the extent that capitalized terms used but not defined herein are defined in the conduct Purchase Agreement. The Escrow Agent shall not be required to notify or obtain the consent, approval, authorization or order of any court or governmental body to perform its dutiesobligations under this Agreement, except as expressly provided herein.
(f) The Escrow Agent will have no responsibility in respect of the validity or sufficiency of this Agreement or of the terms hereof. The recitals of fact contained facts in the “Whereas” clauses herein shall this Agreement will be taken as the statements of the CityMerge and Xxxxxxx, and the Escrow Agent assumes no responsibility for the correctness thereof. of the same.
(g) The Escrow Agent makes no representation as to the sufficiency of the moneys held will be protected in the Escrow Fund to accomplish the refunding of the Refunded Bondsacting upon any notice, instruction, direction, resolution, request, consent, order, certificate, report, opinion, bond or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence other paper or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by document which it in good faith in accordance therewithbelieves to be genuine and to have been signed and presented by the proper party or parties. Whenever the Escrow Agent shall will deem it necessary or desirable that a matter be proved or established prior to taking, suffering, taking or omitting suffering any action under this Escrow Agreement, such matter may be deemed to be conclusively proved and established by a certificate signed by an officer of Merge and Xxxxxxx, and such certificate will be full warranty for any action taken or suffered in good faith under the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision provisions of this Escrow Agreement shall require Agreement.
(h) In the event of a dispute between the parties hereto sufficient in the sole discretion of the Escrow Agent to expend justify its doing so, the Escrow Agent will be entitled at the expense of the Escrow Deposit to tender the Escrow Deposit into the registry or risk custody of any court of competent jurisdiction, to initiate such legal proceedings at the expense of the Escrow Deposit as it deems appropriate, and thereupon to be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in any such court as the Escrow Agent determines to have jurisdiction over the Escrow Deposit. The filing of any such legal proceedings will not deprive the Escrow Agent of its own funds or otherwise incur compensation hereunder earned prior to such filing.
(i) Except as specifically set forth above, the Escrow Agent does not have any financial liability interest in the performance Escrow Deposit but is serving as escrow agent only and having only possession thereof. This Section 4.2(i) will survive notwithstanding any termination of this Agreement or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any resignation of the trusts Escrow Agent.
(j) Any banking association or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or merged, converted or with which it the Escrow Agent may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, banking association or corporation or association succeeding to which all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of transferred, shall succeed to all the Escrow Agent Agent’s rights, obligations and immunities hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such successionhereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent Agent's acceptance of its duties under this Escrow Agreement is subject to the following terms and conditions, which shall govern and control with respect to its employeesrights, agents duties, liabilities and servants shall not be held immunities:
6.1 Except as to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the due execution and delivery of this Escrow AgreementAgreement by its duly authorized officers, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation and has no responsibility as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement or of any other instrument referred to in this Agreement, or as to the City andcorrectness of any statement contained, except and it shall not be required to inquire as otherwise provided herein, to the performance of any obligation under the Agreement.
6.2 The Escrow Agent shall incur no liability be protected in respect thereof. acting upon any written notice, request, waiver, consent, receipt or other document which shall be in the form of a notice jointly executed by Parent, Acquisition and the Shareholders' Representative, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth of any information therein contained, which it in good faith believes to be genuine and what it purports to be.
6.3 The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with the performance of its duties under this Escrow Agreement therewith, except for its ifs own negligence or willful of misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. .
6.4 The Escrow Agent may consult with counsellegal counsel selected by it, who may or may and it shall not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of liable for any action taken, suffered taken or omitted by it in good faith in accordance therewith. Whenever with the advice of such counsel.
6.5 The Shareholders' Representative, on behalf of the Shareholders, and Parent, jointly, agree to indemnify the Escrow Agent shall deem against and save it necessary harmless from any and all claims, liabilities, costs, payments and expenses, including fees of counsel (who may be selected by the Escrow Agent), for anything done or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under omitted by it in the performance of this Escrow Agreement, such matter may be deemed to be conclusively established by except as a certificate signed by an officer result of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the its own negligence or bad faith.
6.6 The Escrow Agent shall have no duties or responsibilities except those expressly set forth. It shall not be liable for special, indirect or consequential loss or damage of bound by any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision modification of this Escrow Agreement shall require unless in writing signed by the other parties and, if its duties as Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunderare affected, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and unless it shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, have given prior written consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which the parties hereto agree shall govern and control with respect to its employeesrights, agents duties, liabilities and servants shall not be held immunities:
(a) Except as to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the its due execution and delivery of this Escrow Agreement, it makes no representation and has no responsibility as to the establishment validity of this Agreement or of any other instrument referred to herein, or as to the correctness of any statement contained herein, and it shall not be required to inquire as to the performance of any obligation under the Merger Agreement;
(b) The Escrow FundsAgent shall be protected in acting upon any written notice, the acceptance of the moneysrequest, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any paymentwaiver, transfer consent, receipt or other application paper or document, not only as to its due execution and the validity and effectiveness of moneys or obligations by its provisions, but also as to the truth of any information therein contained, which it in good faith believes to be genuine and what it purports to be;
(c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection therewith, except its own gross negligence or misconduct;
(d) The Escrow Agent may consult with competent and responsible legal counsel selected by it, and it shall not be liable for any action taken or omitted by it in good faith in accordance with the advice of such counsel;
(e) Each of Parent and the Shareholders' Representative, jointly and severally agrees to indemnify and hold the Escrow Agent and its directors, employees, officers, agents, successors and assigns (collectively, the "Indemnified Parties") harmless from and against any and all losses, claims, damages, liabilities and expenses (collectively, "Damages"), including, without limitation, reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent or incurred by it in connection with the performance of its duties hereunder. Such indemnity includes, without limitation, Damages incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Agreement or involving the subject matter hereof. The indemnification provisions contained in this paragraph are in addition to any other rights any of the Indemnified Parties may have by law or otherwise and shall survive the termination of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission the resignation or non- negligent error removal of the Escrow Agent. Notwithstanding any provision to the contrary in this Agreement, (i) Parent's and the Shareholders' Representatives' liability, if any, to the Indemnified Parties with respect to any Damages shall in no event exceed the balance of the Escrow Account, as adjusted from time to time pursuant to this Agreement, and (ii) neither Parent nor the Shareholders' Representative shall have any liability to the Indemnified Parties with respect to any Damages that result, directly or indirectly, from the gross negligence or misconduct of the Escrow Agent;
(f) The Escrow Agent made shall have no duties or responsibilities except those expressly set forth herein, and it shall not be bound by any modification of this Agreement unless in good faith writing and signed by all parties hereto or their respective successors in the conduct of its duties. interest;
(g) The recitals of fact contained facts in the “Whereas” clauses herein this Agreement shall be taken as the statements of Parent or the CityShareholders' Representative, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereofsame. The Escrow Agent shall not be liable under no obligation or duty to perform any act which would involve it in connection with the performance an expense or liability or to institute or defend any suit in respect of this Agreement or to advance any of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the monies unless properly indemnified;
(h) The Escrow Agent shall be determined protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper or document reasonably believed by it to be genuine and to have been signed and presented by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may proper party or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewithparties. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, taking or omitting suffering any action under this Escrow Agreement, such matter may be deemed to be conclusively proved and established by a certificate signed by an officer of Parent and the City. Notwithstanding anything Shareholders' Representative, and such certificate shall be full warranty for any action taken or suffered in this Escrow Agreement to good faith under the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision provisions of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. Agreement; and
(i) The Escrow Agent may conclusively rely and shall be fully protected does not have any interest in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Amount but is sewing as Escrow Agent may execute only and having only possession thereof This Section 4.2(i) shall survive notwithstanding any termination of this Agreement or the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business resignation of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingAgent.
Appears in 1 contract
Responsibilities of Escrow Agent. (a) Responsibilities of the Escrow Agent. The acceptance by the Escrow Agent of its duties under this Agreement is subject to the following terms and conditions, which the parties to this Agreement hereby agree shall govern and control with respect to such Escrow Agent's rights, duties, liabilities and immunities:
(i) The Escrow Agent agent shall act hereunder as depository only, and its employees, agents and servants it shall not be held to responsible or liable in any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, manner whatsoever for the sufficiency of the moneys held in the share certificates and Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance deposited with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error it. The duties and responsibilities of the Escrow Agent made in good faith hereunder shall be determined solely by the express provisions of this Agreement, and no further duties or responsibilities shall be implied. Except for the defined terms in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided hereinMerger Agreement, the Escrow Agent shall incur no not have any liability under, nor duty to inquire into the terms and provisions of any agreements or instructions, other than outlined in respect thereof. this Agreement.
(ii) The Escrow Agent shall be protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document furnished to it, not only as to its due execution and the validity and effectiveness of its provisions but also as to the truth and acceptability of any information therein contained, which it in good faith believes to be genuine and what it purports to be.
(iii) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it, or for any mistake of fact or law or for anything which it may do or refrain from doing in connection herewith, except for fraud, gross negligence, willful misconduct or for any action taken or omitted in bad faith that a court of competent jurisdiction determines was the primary cause of a loss to KHC or the Holders. The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by both parties hereto. KHC and the Holders, jointly and severally, covenant and agree to indemnify and hold the Escrow Agent and its directors, officers, agents and employees (collectively, the "Indemnitees") harmless from and against any and all liabilities, losses, damages, fines, suits, actions, demands, penalties, costs and expenses, including out-of-pocket, incidental expenses, legal fees and expenses, the allocated costs and expenses of in-house counsel and legal staff and the costs and expenses of defending or preparing to defend against any claim ("Damages") that may be imposed on, incurred by, or asserted against, the Indemnitees or any of them for following any instruction or direction upon which the Escrow Agent is authorized to rely pursuant to the terms of this Agreement. In addition to and not in limitation of the immediately preceding sentence, KHC and the Holders, jointly and severally, also covenant and agree to indemnify and hold the Indemnitees and each of them harmless from and against any Damages that may be imposed on, incurred by, or asserted against the Indemnitees or any of them in connection with or arising out of the Escrow Agent's performance of its duties under this Agreement, provided the Escrow Agreement except for its own Agent has not acted with fraud, gross negligence or bad faith or engaged in willful misconduct, . The provisions of this Section 5 shall survive the termination of this Agreement and the duties and obligations resignation or removal of the Escrow Agent shall be determined by the express provisions of this Escrow Agreementfor any reason. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything Anything in this Escrow Agreement to the contrarycontrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision .
(iv) In the administration of this Agreement and the Escrow Agreement shall require Shares hereunder, the Escrow Agent may consult with counsel for accountants to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powersbe selected and retained by it. The Escrow Agent shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel or accountant.
(v) The Escrow Agent shall have no duties except those which are expressly set forth herein, and it shall not be bound by any notice of a claim, or demand with respect thereto, or any waiver, modification, amendment, termination or rescission of this Agreement, unless in writing received by it.
(vi) The Escrow Agent may conclusively rely resign at any time by giving written notice thereof to KHC and the Holders' Representative, but such resignation shall not become effective until a successor Escrow Agent mutually agreed to by KHC and the Holders' Representative shall have been appointed and shall be fully protected have accepted such appointment in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed writing. If an instrument of acceptance by it to be genuine and to a successor Escrow Agent shall not have been signed or presented by delivered to the proper party or partiesEscrow Agent within thirty (30) days after the giving of such notice of resignation, the resigning Escrow Agent may, at the joint and several expense of KHC and the Holders, petition any court of competent jurisdiction for the appointment of a successor Escrow Agent. The Escrow Agent shall have the right to withhold an amount from the Escrow Fund equal to the amount due and owing to the Escrow Agent, plus any costs and expenses the Escrow Agent shall reasonably believe may execute any be incurred by the Escrow Agent in connection with the appointment of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointeda successor Escrow Agent. Any bank, corporation or association into which the Escrow Agent in its individual capacity may be have merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent in its individual capacity shall be a party, or any bank, corporation or association succeeding to which all or substantially all of the corporate trust business of the Escrow Agent in its individual capacity may be sold or otherwise transferred, shall be the successor of the Escrow Agent hereunder under this Agreement without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingact.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which shall govern and control with respect to its rights, duties, liabilities and immunities:
(a) The Escrow Agent makes no representations or warranties and its employeeshas no responsibilities as to the correctness of any statement contained herein, agents and servants the Escrow Agent shall not be held required to inquire as to the performance of any personal liability whatsoeverobligation under any agreement or document other than this Agreement, including, without limitation, the License Agreement or any agreements or documents referred to herein or therein.
(b) The Escrow Agent shall be protected in tortacting upon any written notice, contractrequest, waiver, consent, receipt or otherwiseother paper or document from any of the parties hereto, in connection with the not only as to its due execution and delivery the validity and effectiveness of this its provisions, but also as to the truth of any information therein contained and what it purports to be. The Escrow AgreementAgent shall be entitled to rely upon any certification, the establishment of the Escrow Fundsinstruction, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer notice or other application of moneys or obligations by the Escrow Agent writing delivered to it in accordance 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 reason of it, without independent investigation, to be genuine and may assume that any non-negligent act, non-negligent omission person purporting to give notice or non- negligent error advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(c) The sole duty of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses Agent, other than as herein specified, shall be taken to receive the Escrow Deposit and hold it subject to release, in accordance with the written instructions of Quinxxx xxx {Confidential portion omitted and filed separately with the Commission}, or as the statements of the Cityotherwise provided for herein, and the Escrow Agent assumes shall be under no responsibility for duty to determine whether {Confidential portion omitted and filed separately with the correctness thereofCommission} is complying with requirements of the License Agreement or any other agreement or document. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions of any agreement beyond the specific terms hereof. The Escrow Agent makes shall have no representation as duties or except those expressly set forth herein and shall neither be obligated to the sufficiency of the moneys held in the Escrow Fund recognize nor have any liability or responsibility arising under any other agreement to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, which the Escrow Agent shall incur no liability in respect thereofis not a party, even though reference thereto may be made herein. The Escrow Agent shall not be liable under any obligation to take any legal action in connection with the this Agreement or towards its enforcement or performance of its duties under this Escrow Agreement except for its own negligence or willful misconductto appear in, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may prosecute or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of defend any action taken, suffered or omitted by it legal proceeding in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingconnection herewith.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, have no duties or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, responsibilities except as otherwise provided those expressly set forth herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable have no responsibility for the validity of any agreements referred to in connection with this Agreement, or for the performance of its duties under this Escrow Agreement except any such agreements by any party thereto or for its own negligence or willful misconduct, and interpretation of any of the duties and obligations provisions of any of such agreements. The liability of the Escrow Agent hereunder shall be determined by the express provisions of this Escrow Agreementlimited solely to bad faith, willful misconduct or gross negligence on its part. The Escrow Agent may consult with counselshall be protected in acting upon any certificate, who may notice or may other instrument whatsoever received by the Escrow Agent under this Agreement, not be counsel only as to its due execution and the validity and effectiveness of its provisions, but also as to the City, truth and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect accuracy of any action takeninformation therein contained, suffered or omitted by it which the Escrow Agent in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it believes to be genuine and to have been signed or presented by the a proper party person or partiespersons. The Escrow Agent may execute shall have no responsibility as to the validity, collectibility or value of any of the trusts or powers property held by it in escrow hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due carepursuant to this Agreement, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged rely on any notice, instruction, certificate, statement, request, consent, confirmation, agreement or converted or with other instrument which it may believes to be consolidated, genuine and to have been signed or any bank, corporation presented by a proper person or association resulting from any merger, conversion or consolidation to which persons. In the event that the Escrow Agent shall be a party, uncertain as to its duties or rights hereunder or shall receive instructions from any bank, corporation or association succeeding to all or substantially all of the corporate trust business undersigned with respect to any property held by it in escrow hereunder pursuant to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the provisions of this Agreement, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise in writing jointly by the successor Escrow Beneficiaries and the Majority Members or by an order of a court of competent jurisdiction. The Escrow Agent shall not be deemed to have notice of, or duties with respect to, any agreement or agreements with respect to any property held by it in escrow hereunder pursuant to this Agreement other than this Agreement or except as otherwise provided herein. This Agreement sets forth the entire agreement among the Parties relating to the subject matter hereof. Notwithstanding any provision to the contrary contained in any other agreement (excluding any amendment to this Agreement) between any of the Parties, the Escrow Agent shall have no interest in the property held by it in escrow hereunder except as provided in this Agreement. In the event that any of the terms and provisions of any other agreement (excluding any amendment to this Agreement) between any of the Parties conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all respects to the extent necessary to determine the rights, duties or obligations of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingAgent.
Appears in 1 contract
Responsibilities of Escrow Agent. The Contingent Payment Escrow Agent Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which the parties hereto agree shall govern and control with respect to its employeesrights, agents duties, liabilities and servants shall not be held immunities:
(a) Except as to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the its due execution and delivery of this Escrow the Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent it makes no representation and has no responsibility as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement or of any other instrument referred to herein, or as to the City and, except as otherwise provided correctness of any statement contained herein, and it shall not be required to inquire as to the performance of any obligation under the Merger Agreement;
(b) The Contingent Payment Escrow Agent shall incur no liability be protected in respect thereof. acting upon any written notice, request, waiver, consent, receipt or other paper or document, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth of any information therein contained, which it in good faith believes to be genuine and what it purports to be;
(c) The Contingent Payment Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with the performance of its duties under this Escrow Agreement therewith, except for its own gross negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. ;
(d) The Contingent Payment Escrow Agent may consult with counselcompetent and responsible legal counsel selected by it, who may or may and it shall not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of liable for any action taken, suffered taken or omitted by it in good faith in accordance therewithwith the advice of such counsel;
(e) Principal Holders, on the one hand, and Surviving Corporation, on the other hand, agree to indemnify and hold the Contingent Payment Escrow Agent and its directors, employees, officers, agents, successors and assigns (collectively, the "INDEMNIFIED PARTIES") harmless from and against any and all losses, claims, damages, liabilities and expenses (collectively, "DAMAGES"), including, without limitation, reasonable costs of investigation and counsel fees and expenses which may be imposed on the Contingent Payment Escrow Agent or incurred by it in connection with the performance of its duties hereunder. Such indemnity includes, without limitation, Damages incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Agreement or involving the subject matter hereof. The indemnification provisions contained in this paragraph shall survive the termination of this Agreement or the resignation or removal of the Contingent Payment Escrow Agent. Notwithstanding any provision to the contrary in this Agreement, neither the Principal Holders, the Holder Representative nor Surviving Corporation shall have any liability to the Indemnified Parties with respect to any Damages that result, directly or indirectly, from the gross negligence or misconduct of the Contingent Payment Escrow Agent;
(f) The Contingent Payment Escrow Agent shall have no duties or responsibilities except those expressly set forth herein, and it shall not be bound by any modification of this Agreement unless in writing and signed by all parties hereto or their respective successors in interest;
(g) The recitals of facts in this Agreement shall be taken as the statements of Principal Holders and Surviving Corporation, and the Contingent Payment Escrow Agent assumes no responsibility for the correctness of the same. The Contingent Payment Escrow Agent shall be under no obligation or duty to perform any act which would involve it in an expense or liability or to institute or defend any suit in respect of this Agreement or to advance any of its own moneys unless properly indemnified;
(h) The Contingent Payment Escrow Agent shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper or document reasonably believed by it to be genuine and to have been signed and presented by the proper party or parties. Whenever the Contingent Payment Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, taking or omitting suffering any action under this Escrow Agreementagreement, such matter may be deemed to be conclusively inclusively proved and established by a certificate signed by an officer the Holder Representative and Surviving Corporation, and such certificate shall be full warranty for any action taken or suffered in good faith under the provisions of this Agreement; and
(i) The Contingent Payment Escrow Agent does not have any interest in the Contingent Payment Escrow Amount but is serving as Contingent Payment Escrow Agent only and having only possession thereof. This SECTION 4.2(i) shall survive notwithstanding any termination of this Agreement or the resignation of the City. Notwithstanding anything in this Contingent Payment Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingAgent.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held funds deposited in the Escrow Fund accordance with Section 2(b) and invested pursuant to Section 3(a) and earnings thereof, if any, to accomplish the refunding payment and prepayment of the Refunded Bonds, Obligations pursuant to the Prior Trust Agreement or to the validity of this Escrow Agreement as to the City District and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence negligence, willful misconduct or willful misconductdefault, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the CityDistrict, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter (except the matters set forth herein as specifically requiring a certificate of a nationally recognized firm of independent certified public accountants or an opinion of counsel of recognized standing in the field of law relating to municipal bonds) may be deemed to be conclusively established by a certificate signed by an officer written certification of the CityDistrict. Notwithstanding anything in this The Escrow Agreement to Agent shall furnish the contrary, in no event shall District periodic cash transaction statements which include detail for all investment transactions effected by the Escrow Agent or brokers selected by the District. Upon the District’s election, such statements will be liable for specialdelivered via the Escrow Agent’s online service and upon electing such service, indirect or consequential loss or damage paper statements will be provided only upon request. The District waives the right to receive brokerage confirmations of any kind whatsoever (including but not limited to lost profits), even if security transactions effected by the Escrow Agent has been advised of such loss or damage and regardless of as they occur, to the form of actionextent permitted by law. No provision of this Escrow Agreement shall require The District further understands that trade confirmations for securities transactions effected by the Escrow Agent will be available upon request and at no additional cost and other trade confirmations may be obtained from the applicable broker. Nothing in this paragraph limits Section 3.1(a). The Escrow Agent undertakes to expend perform only such duties as are expressly set forth in this Agreement and no implied duties, covenants or risk its own funds or otherwise incur any financial liability in obligations shall be read into this Agreement against the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powersEscrow Agent. The Escrow Agent may conclusively rely resign by giving written notice to the District, and upon receipt of such notice the District shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, promptly appoint a successor Xxxxxx Agent. If the District does not appoint a successor Xxxxxx Agent within thirty (30) days of receipt of such notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The resigning Escrow Agent may execute any petition a court of competent jurisdiction for the trusts or powers hereunder or perform any duties hereunder either directly or appointment of a successor Xxxxxx Agent, which court may thereupon, upon such notice as it shall deem proper, appoint a successor Xxxxxx Agent. Upon acceptance of appointment by or through agentsa successor Xxxxxx Agent, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the resigning Escrow Agent shall be a party, or any bank, corporation or association succeeding to transfer all or substantially all of the corporate trust business of amounts held by it in the Escrow Fund to such successor Xxxxxx Agent shall and be the successor of the Escrow Agent hereunder without the execution or filing discharged of any paper with any party hereto further obligation or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingresponsibility hereunder.
Appears in 1 contract
Samples: Escrow Agreement
Responsibilities of Escrow Agent. The acceptance by the Escrow Agent of its duties under this Agreement is subject to the following terms and conditions, which the parties to this Agreement hereby agree shall govern and control with respect to their rights, duties, liabilities and immunities.
(a) The Escrow Agent and its employees, agents and servants shall act hereunder as depository.
(b) The Escrow Agent shall not be held liable, except for its own gross negligence or willful misconduct.
(c) The Escrow Agent may consult with, and obtain advice from counsel in the event of any bona fide question as to any personal of the provisions hereof or its duties hereunder, and shall incur no liability whatsoever, and shall be fully protected in tort, contract, or otherwise, acting in connection good faith in accordance with the execution opinion and delivery instructions of such counsel.
(d) The Escrow Agent shall not in any way be bound or affected by any notice of modification or cancellation of this Escrow Agreement, the establishment of Agreement unless notice thereof is given to the Escrow FundsAgent by GTP and Stockholder in accordance with Section 6 --------- hereof, the acceptance of the moneys, the sufficiency of the moneys held in nor shall the Escrow Funds Agent be bound by any modification of its obligations hereunder unless the same shall be consented to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with writing. The Escrow Agent shall be entitled to rely upon any judgment, certification, demand, notice or other writing delivered to it hereunder without being required to determine the provisions of this Escrow Agreement authenticity or by reason the correctness of any non-negligent actfact stated therein, non-negligent omission the propriety or non- negligent error validity of the service thereof, or the jurisdiction of a court issuing any judgment or order.
(e) The Escrow Agent made may act in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall reliance upon any instrument or signature reasonably believed by it to be taken as the statements of the Citygenuine, and the Escrow Agent assumes no responsibility for may assume that any person purporting to give any notice of receipt of advice or make any statement in connection with the correctness thereof. The provisions hereof has been duly authorized to do so.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent makes no representation as with respect to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except any and all matters pertinent hereto. Except as otherwise expressly provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent not refer to, and shall not be liable bound by, the provisions of any other agreement.
(g) Except with respect to claims based upon the Escrow Agent's willful misconduct or gross negligence, GTP and Stockholder shall indemnify and hold harmless the Escrow Agent from and against any claims arising out of or in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed indemnification to be conclusively established include all reasonable costs and expenses incurred by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for specialAgent, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits)reasonable attorneys' fees, even if and the Escrow Agent has been advised payment thereof shall be borne fifty percent (50%) by GTP and fifty percent (50%) by the Stockholder.
(h) In the event of such loss any disagreement between the parties to this Agreement, or damage between them or any one of them and regardless any other person, resulting in adverse claims or demands being made in connection with the subject matter of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunderescrow, or in the exercise event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on it, until (i) the rights of all parties shall have been fully and finally determined by an arbitrator in accordance with Section 10(g) below or (ii) all differences shall have been ------------- adjusted and all doubt resolved by written agreement executed by all parties hereto.
(i) GTP acknowledges that the Escrow Agent is counsel for the Stockholder and Navigator. GTP, having conferred with counsel, hereby waives any right to object to any conflict of interest on the part of Escrow Agent existing by reason of such fact, whether arising by reason of the performance by Escrow Agent of its rights duties hereunder or powers. by reason of its representation of the Stockholder and Navigator in connection with the Merger Agreement, this Agreement, any other agreement pursuant hereto or thereto, or in connection with any dispute between the Stockholder and GTP.
(j) The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented removed by the proper party or partiesmutual agreement of GTP and Stockholder. The Escrow Agent Agent, or any successor Escrow Agent, may execute any resign and discharge itself of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agentstrust created hereunder, attorneys, custodians or nominees appointed with due care, and but such resignation shall not be responsible effective for any willful misconduct or negligence on thirty (30) days after written notice is given to GTP and Stockholder. Upon the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business resignation and removal of the Escrow Agent Agent, GTP shall be succeed to the duties of the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingAgent.
Appears in 1 contract
Samples: Escrow Agreement (Greenwich Technology Partners Inc)
Responsibilities of Escrow Agent. The Escrow Agent Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which the parties hereto agree shall govern and control with respect to its employeesrights, agents duties, liabilities and servants shall not be held immunities:
(a) Except as to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the its due execution and delivery of this Escrow the Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent it makes no representation and has no responsibility as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement or of any other instrument referred to herein, or as to the City and, except as otherwise provided correctness of any statement contained herein, and it shall not be required to inquire as to the performance of any obligation under the Amendment; (b) The Escrow Agent shall incur no liability be protected in respect thereof. acting upon any written notice, request, waiver, consent, receipt or other paper or document, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth of any information therein contained, which it in good faith believes to be genuine and what it purports to be; (c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with the performance of its duties under this Escrow Agreement therewith, except for its own gross negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. ; (d) The Escrow Agent may consult with counselcompetent and responsible legal counsel selected by it, who may or may and it shall not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of liable for any action taken, suffered taken or omitted by it in good faith in accordance therewith. Whenever with the advice of such counsel; (e) The Parent shall reimburse the Escrow Agent for all expenses incurred by it in connection with its duties hereunder (other than taxes imposed in respect of the receipt of fees by the Escrow Agent pursuant to Section 5.1). The Parent and the Applicable Slick 50 Stockholders agree to jointly and severally indemnify and hold the Escrow Agent and its directors, employees, officers, agents, successors and assigns (collectively, the "Indemnified Parties") harmless from and against any and all losses, claims, damages, liabilities and expenses (collectively, "Damages"), including, without limitation, reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent or incurred by it in connection with its acceptance of this appointment as the Escrow Agent hereunder or the performance of its duties hereunder. As between the Parent and the Applicable Slick 50 Stockholders, the party or parties legally liable for any Damages suffered by the Escrow Agent and for which another party or parties has provided indemnity, shall deem it necessary reimburse the party or desirable that a parties providing indemnity the amount paid immediately upon written demand. Such indemnity includes, without limitation, Damages incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Escrow Agreement or involving the subject matter be proved hereof. The indemnification provisions contained in this paragraph are in addition to any other rights any of the Indemnified Parties may have by law or established prior otherwise and shall survive the termination of this Agreement or the resignation or removal of the Escrow Agent. Notwithstanding any provision to taking, suffering, or omitting any action under the contrary in this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement Parent and the Applicable Slick 50 Stockholders shall have no liability to the contraryIndemnified Parties with respect to any Damages that result, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by indirectly, from the gross negligence or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.Agent;
Appears in 1 contract
Samples: Escrow Agreement (Quaker State Corp)
Responsibilities of Escrow Agent. The Escrow Agent's acceptance of its duties under this Agreement is subject to the following terms and conditions, which shall govern and control with respect to its rights, duties, liabilities and immunities:
(a) The Escrow Agent makes no representations or warranties and its employeeshas no responsibilities as to the correctness of any statement contained herein, agents and servants the Escrow Agent shall not be held required to inquire as to the performance of any personal liability whatsoever, in tort, contract, obligation under any agreement or otherwise, document other than this Agreement nor shall the Escrow Agent be under any obligation to take any legal action in connection with this Agreement or towards its enforcement or performance or to appear in, prosecute or defend any action or legal proceeding in connection herewith.
(b) The Escrow Agent shall be protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document from any duly authorized agent of any Seller, including, without limitation, Xxx. Xxxxxxx Xxxxx or Xx. Xxx Xxxxx as contemplated by this Agreement and/or any duly authorized agent of the Purchaser, not only as to its due execution and delivery the validity and effectiveness of this its provisions, but also as to the truth of any information therein contained and what it purports to be. The Escrow AgreementAgent shall be entitled to rely upon any certification, the establishment of the Escrow Fundsinstruction, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer notice or other application of moneys or obligations by the Escrow Agent writing delivered to it in accordance 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 reason of it, without independent investigation, to be genuine and may assume that any non-negligent act, non-negligent omission person purporting to give notice or non- negligent error advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(c) The sole duty of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses Agent, other than as herein specified, shall be taken as to receive the statements Escrow Amount and hold it subject to release, in accordance with the written instructions of the CityPurchaser and Xxx. Xxxxxxx Xxxxx or Xx. Xxx Xxxxx on behalf of the Sellers or as otherwise provided for herein, and the Escrow Agent assumes shall be under no responsibility for duty to determine whether the correctness thereofPurchaser and the Sellers are complying with the requirements of the Asset Purchase Agreement or any other agreement or document. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions of any agreement beyond the specific terms hereof. The Escrow Agent makes shall have no representation as duties or responsibilities except those expressly set forth herein and shall neither be obligated to the sufficiency of the moneys held in the Escrow Fund recognize nor have any liability or responsibility arising under any other agreement to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, which the Escrow Agent shall incur no liability in respect thereofis not a party, even though reference thereto may be made herein. The Escrow Agent shall not be required to inquire as to the performance of any obligation under any agreement or document, including, without limitation, the Asset Purchase Agreement or any agreements or documents referred to herein or therein nor shall the Escrow Agent be under any obligation to take any legal action in connection with this Agreement or towards its enforcement or performance or to appear in, prosecute or defend any action or legal proceeding in connection herewith.
(d) The Escrow Agent does not have any interest in the Escrow Amount, but is serving as escrow holder only and has only possession thereof.
(e) The Escrow Agent shall not be liable for any error of judgment, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except as may result from its own gross negligence or willful misconduct.
(f) The Purchaser agrees to indemnify the Escrow Agent against and save it harmless from any and all claims, liabilities, costs, payments and expenses, including reasonable fees and expenses of counsel either paid to retained attorneys (who may be selected by the Escrow Agent) or amounts representing the fair value of legal services rendered to itself, incurred as a result of or in connection with the performance of its duties under this Agreement, except as a result of the Escrow Agreement except for its Agent's own gross negligence or willful misconduct.
(g) The duties of the Escrow Agent hereunder are solely ministerial in nature, and the duties Escrow Agent shall not have any liability under, or duty to inquire into, the terms and provisions of any other agreement or document. The Purchaser and the Sellers acknowledge that the Escrow Agent, from time to time, has served as counsel to the Purchaser including, without limitation, in connection with the negotiation, execution and delivery of the Asset Purchase Agreement and the other agreements and documents contemplated thereby. The participation of Xxxxxxx Berlin Shereff Xxxxxxxx, LLP as Escrow Agent is being undertaken as an accommodation to the parties hereto and shall in no way hinder or limit the present or future ability of Xxxxxxx Berlin Shereff Xxxxxxxx, LLP to act as counsel to the Purchaser with respect to any matter including, but not limited to, disputes between and/or among the Purchaser, the Sellers and any stockholder of the Sellers arising from the Asset Purchase Agreement or with regard to this Agreement; provided, however, that such representation shall not affect the Escrow Agent's obligations hereunder and shall be at the cost and expense of the Purchaser.
(h) In case any property held by the Escrow Agent hereunder shall be attached, garnished or levied upon under any order of court, or the delivery thereof shall be stayed or enjoined by any order of court, or any other writ, order, judgment or decree shall be entered or issued by any court affecting such property, or any part thereof, or any act of the Escrow Agent, the Escrow Agent is hereby expressly authorized to use its sole discretion to obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, and in case the Escrow Agent obeys and complies with any such writ, order, judgment or decree, it shall not be liable to any person, firm or corporation by reason of such compliance notwithstanding the fact that such writ, order, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(i) The Escrow Agent may, at any time, resign by providing written notice to each of the other parties hereto and depositing the Escrow Amount with a successor escrow agent designated jointly by the Purchaser and Xxx. Xxxxxxx Xxxxx or Xx. Xxx Xxxxx on behalf of the Sellers. Upon receipt of the Escrow Agent's resignation, the Purchaser and Xxx. Xxxxxxx Xxxxx or Xx. Xxx Xxxxx on behalf of the Sellers 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, the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may entitled to deposit any or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business Escrow Amount with a court of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstandingcompetent jurisdiction.
Appears in 1 contract
Samples: Escrow Agreement (Beran Sam)
Responsibilities of Escrow Agent. The (a) Escrow Agent shall exercise the same degree of care toward the Escrow Property as it exercises toward its own similar property and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery higher standard of care under this Escrow Agreement, nor deemed to owe any fiduciary duty to the establishment of the Depositors.
(b) Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held Agent shall be obligated to perform only such duties as are expressly set forth in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys this Agreement. No implied covenants or obligations by the shall be inferred from this Agreement against Escrow Agent, nor shall Escrow Agent in accordance with be bound by the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of agreement among the Escrow Agent made in good faith in Depositors beyond the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The specific terms hereof.
(c) Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement hereunder except for its own gross negligence or willful misconduct and the Depositors severally and not jointly, to the extent of 50% each agree to indemnify Escrow Agent for and hold it harmless as to any loss, liability, or expense, including reasonable attorney's fees, incurred on the part of Escrow Agent and arising out of or in connection with Escrow Agent's duties under this Agreement, except for any such loss, liability or expense arising out of or in connection with Escrow Agent's gross negligence or willful misconduct.
(d) Escrow Agent shall be entitled to rely upon any reasonable order, judgment, 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. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and comporting with the provisions of this Agreement and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in accordance with the provisions hereof has been duly authorized to do so.
(e) Escrow Agent may consult with, and obtain advice from, legal counsel chosen by Escrow Agent in the event of any question as to any of the provisions of this Agreement or the duties hereunder, and Escrow Agent shall, except in the case of gross negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in incur no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting in good faith in accordance with the written opinion and instructions of such counsel.
(f) Escrow Agent does not have any interest in the Escrow Property deposited hereunder but is serving as escrow holder only and has only possession thereof.
(g) Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from acting upon taking any resolutionaction with respect to, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval any securities or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the property deposited hereunder.
(h) Escrow Agent shall be a party, or have no responsibility to withhold for tax purposes any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing portion of any paper distribution made pursuant to this Agreement. Responsibility for any tax payments to be made in connection with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law Escrow Property distributed pursuant to effect such succession, anything herein to the contrary notwithstandingthis Agreement shall remain with Buyer and Seller.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the 2012-A Escrow Fund to accomplish the refunding of the Refunded 2012-A Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
Appears in 1 contract
Samples: Escrow Agreement
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held (a) With respect to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the parties acknowledge and agree that Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the is acting solely as an independent Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereofpursuant to this Agreement. The Escrow Agent makes undertakes to perform only such duties as are expressly set forth herein and no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, other or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the further duties or responsibilities shall be implied.
(b) Escrow Agent shall incur no liability not be required to institute or defend any action involving any matters referred to herein or which affected it or its duties or liabilities hereunder unless required to do so by any party to this Agreement and then only upon receiving indemnity in accordance with Section 3.3 hereto, against any and all claims, liabilities and expenses in relation thereto. Except as otherwise contemplated by Section 3.2(c) hereof, Escrow Agent shall not be required to defend any legal proceedings which may be instituted against Escrow Agent in respect thereofto the subject matter hereof. The Except as otherwise contemplated by Section 3.2(c) hereof, in the event any action is instituted against Escrow Agent, Escrow Agent may interplead the parties hereto and may deposit the subject matter of this escrow into court and in such event Escrow Agent shall be relieved and/or discharged from any and all obligations and liabilities under and pursuant hereto subject to any required permission of the court in which such interpleader is filed.
(c) Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties so long as Escrow Agent complies with the terms of this Agreement. Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. Escrow Agent shall have no duty to solicit any payments which may be due it hereunder. Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered taken or omitted by it in good faith in accordance therewithexcept to the extent that a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to the Acquiror or Target Stockholders. Whenever Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. Escrow Agent shall deem not be liable for anything done, suffered or omitted in good faith by it necessary in accordance with the advice or desirable opinion of any such counsel, accountants or other skilled persons. In the event that a matter Escrow Agent shall be proved uncertain as to its duties or established prior rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to taking, suffering, or omitting refrain from taking any action under this Escrow Agreement, such matter may and its sole obligation shall be deemed to keep safely all property held in escrow until it shall be conclusively established directed otherwise in writing by all of the other parties hereto or by a certificate signed by an officer final order or judgment of the Citya court of competent jurisdiction. Notwithstanding anything Anything in this Escrow Agreement to the contrarycontrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
Appears in 1 contract
Responsibilities of Escrow Agent. The Escrow Agent and its employees(a) In the absence of willful misconduct or gross negligence, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow Funds, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Funds to pay the Refunded Bonds or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds, or to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable for any act which it may do or omit to do hereunder. Any act done or omitted by Escrow Agent pursuant to the advice of counsel shall be deemed conclusively not to constitute gross negligence or willful misconduct.
(b) Escrow Agent may act in reliance upon any notice, document, instrument, certificate, other writing or signature delivered to it, may assume the validity and accuracy of any statement or assertion contained therein and may assume that any person purporting to give any writing, notice, advice or instruction in connection with the performance of its duties under this Escrow Agreement except for its own negligence provisions hereof is acting in the capacity in which he or willful misconduct, she purports to be acting and the duties and obligations of the has been duly authorized to do so. Escrow Agent shall have no duty to determine the authenticity of any such item delivered to it, or to determine the accuracy of any statement contained therein, nor shall Escrow Agent be determined obliged to inquire as to the form, execution, sufficiency or validity of any such item nor to inquire as to the identity, authority or rights of the person or persons executing or delivering the same. Escrow Agent may, at its option, treat its receipt of any document by telecopy or e-mail as equivalent to receipt of the express provisions original document of which it is a telecopy or e-mail.
(c) The obligations and duties of Escrow Agent are confined to those specifically enumerated in this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary not be subject to, nor be under any obligation to ascertain or desirable that a matter be proved construe the terms and conditions of any other document or established prior instrument, whether or not delivered to takingor reviewed by Escrow Agent in any capacity at any time, suffering, and whether or omitting any action under not referred to in this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event nor shall the Escrow Agent be liable for specialobliged to inquire as to the form, indirect execution, sufficiency or consequential loss or damage validity of any kind whatsoever such instrument or document nor to inquire as to the identity, authority or rights of the person or persons executing or delivering the same.
(including but not limited d) If Escrow Agent receives notice or becomes aware of any conflicting demands or claims with respect to lost profits), even if or relating to the Escrow Agent has been advised of such loss or damage and regardless of Fund, the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto or any money, property or instruments deposited pursuant hereto or affected hereby, or if Escrow Agent is otherwise in doubt as to what action it is required to take hereunder, or as to the completeness or accuracy of any certificate or other document delivered hereunder, Escrow Agent shall have the right (but not the obligation), in its sole discretion, without liability for interest, damages or otherwise, to discontinue any or all further acts on its part otherwise required hereunder until such conflict or doubt is resolved to its complete satisfaction and/or to commence or defend any interpleader or other action or proceeding for the determination of such conflict.
(e) ENER1 and Wanxiang, jointly and severally, agree: (i) to indemnify and hold Escrow Agent harmless from and against any and all costs, damages, losses, judgments, fees of in-house or outside attorneys (whether regularly retained or specially engaged), expenses, obligations and liabilities of every kind and nature (except for such costs, damages, losses, judgments, fees, expenses, obligations or liabilities caused by any act or omission of Escrow Agent adjudicated by final non-appealable order of a court of competent jurisdiction to constitute gross negligence or willful misconduct of Escrow Agent) that Escrow Agent may incur, sustain or be required to pay in connection with or arising out of this Agreement or the Escrow Fund; and (ii) to pay to Escrow Agent on demand the full amount of all such costs, damages, losses, judgments, fees, expenses, obligations and liabilities. To secure the foregoing indemnification and payment obligations, Escrow Agent is hereby granted a pledge of and a security interest in the Escrow Fund and the right to disburse to itself from the Escrow Fund amounts necessary to discharge such payment obligations. The provisions of this paragraph shall survive any termination of this Agreement and the resignation or removal of Escrow Agent.
(f) In the event the Escrow Fund is attached or levied upon in whole or part under an order of any court of competent jurisdiction or if the disbursement of any of such funds is stayed or enjoined by an order of any court of competent jurisdiction, or any order or judgment is made or entered by any court of competent jurisdiction affecting the Escrow Fund deposited under this Agreement, or any part hereof, Escrow Agent is hereby expressly directed to obey and comply with all orders so entered or issued. Escrow Agent shall not be liable to the ENER1 and Wanxiang or to any other person, firm or corporation by reason of such compliance, notwithstanding that such order is subsequently reversed, modified, annulled, set aside or vacated.
(g) Escrow Agent shall not be entitled to any compensation for its services as Escrow Agent. Escrow Agent is not in that capacity a fiduciary of any party hereto. Notwithstanding the role and services of Escrow Agent hereunder and the fact that Escrow Agent serves as legal counsel to Wanxiang, all parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein consent to the contrary notwithstandingcontinued role and service of Escrow Agent as legal counsel to Wanxiang in connection with the transactions contemplated by the Loan Commitment and otherwise, and waive any actual or potential conflicts of interest relating thereto. The role of Escrow Agent hereunder shall not increase in any respect the obligations and liabilities of Escrow Agent in its capacity as legal counsel to Wanxiang, nor shall the role of Escrow Agent as legal counsel to Wanxiang increase in any respect the obligations and liabilities of Escrow Agent in its capacity hereunder.
Appears in 1 contract
Samples: Escrow Agreement (Ener1 Inc)
Responsibilities of Escrow Agent. The Escrow Agent and its employees, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Agreement, the establishment of the Escrow FundsFund, the acceptance of the moneysmoneys or securities deposited therein, the purchase of the Escrow Securities, the retention of the Escrow Securities or the proceeds thereof, the sufficiency of the moneys held in the Escrow Funds Securities to pay the Refunded Bonds Prepaid Series 2005A Certificates or any payment, transfer or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement or by reason of any non-negligent act, non-negligent omission or non- non-negligent error of the Escrow Agent made in good faith in the conduct of its duties. The Escrow Agent shall not be liable for the accuracy of any calculations provided as to the sufficiency of the money and securities deposited with it to pay the principal, interest or premiums, if any, on the Prepaid Series 2005A Certificates. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the CityDistrict, and the Escrow Agent assumes no responsibility for the correctness thereofthereof or the correctness of any recitals or statements contained in the Refunding Bonds. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund Securities to accomplish the refunding prepayment of the Refunded Bonds, Prepaid Series 2005A Certificates or to the validity of this Escrow Agreement as to the City District and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own respective negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Agreement. Except in the case of willful misconduct, in no event shall the Escrow AgreementAgent be liable for any special indirect or consequential damages. The Escrow Agent shall be under no obligation to inquire into or be in any way responsible for the performance or nonperformance by the District of its obligations. The Escrow Agent may consult with counsel, who may or may not be bond counsel to the CityDistrict, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of actionDistrict. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers. The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed. Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
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Samples: Escrow Agreement
