Terms of Escrow. Except in the case of the willful misconduct or gross negligence of the Escrow Agent, the following provisions shall apply: 6.1 The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of the this Escrow Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto. 6.2 The Escrow Agent shall not be responsible for the sufficiency, accuracy, form, execution, validity, value or genuineness of any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions hereof. 6.3 The Escrow Agent shall have the right to assume, in the absence of written notice to the contrary from the proper person or persons, that a fact or an event by reason of which an action would or might be taken by the Escrow Agent does not exist or has not occurred, without incurring liability for any action taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption. 6.4 Following the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if such notice shall relate to the other parties hereto, notify such parties thereof in writing; but the failure by the Escrow Agent to give such notice shall not relieve any party from any liability which such party may have to the Escrow Agent hereunder. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may (i) commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of any share certificates representing Shares in the possession of Escrow Agent; (ii) deposit any share certificates representing Shares in the possession of Escrow Agent with the clerk of any appropriate court; or (iii) retain any share certificates representing Shares in the possession of Escrow Agent pending receipt of (a) consistent written instructions from each of Skyway, Dupont, and a duly authorized representative acting on behalf of all of the Parties involved, as to the disposition thereof or (b) a final, non-appealable order of a court having jurisdiction over all of the Parties directing to whom and under what circumstances any share certificates representing Shares and/or the aircraft title and FAA certificate in the possession of Escrow Agent are to be delivered. 6.5 The Escrow Agent shall be entitled to reimbursement from Skyway and Dupont, jointly and severally, for all expenses paid or incurred by it in the administration of its duties hereunder. 6.6 The Escrow Agent shall be indemnified and held harmless by Skyway and Dupont, jointly and severally, from and against any and all liabilities, losses, costs and expenses, including, without limitation, (a) reasonable attorneys' fees and disbursements and (b) usual and customary expenses involved in discovery proceedings and testimony, in connection with any claim, action, suit or other proceeding which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, or the Shares. In addition, the Escrow Agent shall be entitled to receive from Skyway and Dupont jointly and severally, fees (in amounts calculated at the Escrow Agent's customary rates) for time devoted to matters arising out of or related to its services hereunder, including, without limitation, in connection with any such claim, action, suit or other proceeding. 6.7 From time to time on and after the date hereof, the Parties other than the Escrow Agent shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Escrow Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder. 6.8 The Escrow Agent may resign at any time and be discharged from its duties as the escrow agent hereunder by its giving the other parties hereto at least thirty (30) days prior written notice thereof in accordance with the terms hereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the other Parties, jointly, any share certificates representing Shares in the possession of Escrow Agent upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new agent is so appointed within the sixty (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit any share certificates representing Shares in the possession of Escrow Agent with the Circuit Court for Pinellas County, Florida. 6.9 The Escrow Agent shall resign and be discharged from its duties as the escrow agent hereunder if so requested in writing at any time by the other Parties, jointly; provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided in Section 6.8 hereof. 6.10 Following resignation and/or discharge of the Escrow Agent, the provisions of this Section 6 shall nonetheless continue to be applicable with respect to the Escrow Agent.
Appears in 1 contract
Samples: Escrow Agreement (Skyway Communications Holding Corp)
Terms of Escrow. Except (a) The parties hereby appoint the Administrative Agent as escrow agent in accordance with the case of the willful misconduct or gross negligence of the Escrow Agent, the following provisions shall apply:
6.1 The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith terms and in the exercise of its own best judgmentconditions set forth herein, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. hereby accepts such appointment as escrow agent.
(b) The Escrow Administrative Agent shall not be bound by any notice or demand, disburse all or any waiver, modification, termination or rescission part of the this Escrow Agreement unless evidenced Escrowed Shares as follows: any time the Administrative Agent receives (i) a written notification executed by a writing delivered Grantor (or such Grantor’s successor interest to the Escrow Escrowed Shares), advising the Administrative Agent signed by the proper party of a proposed Disposition (as defined below) of Escrowed Shares or parties other Restricted Disposition Proceeds, (ii) (subject to Section 4.5(a)(iii)) all Disposition Proceeds (as herein defined) paid or payable to Grantors in respect of such Escrowed Shares and, (iii) if other than cash, duly executed instruments of assignment and delivery, the duties or rights Administrative Agent shall immediately release such portion of the Escrow Agent are affectedEscrowed Shares, unless it shall have given its prior subject as herein provided, as is specified in such written consent theretonotice to the Persons specified in such written notice.
6.2 (c) The Escrow Administrative Agent shall not be responsible for the sufficiencysufficiency or accuracy of the form of, accuracy, form, or the execution, validity, value or genuineness of of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Administrative Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority authority, or rights of the persons Persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions hereofor this Agreement.
6.3 The Escrow (i) In its capacity as escrow agent, the Administrative Agent shall have the right no duties or responsibilities other than those expressly set forth herein and except as expressly set forth herein, shall have no duty to assumeenforce any obligation of any Person, in the absence to make any payment or delivery of written notice Disposition Proceeds, or to the contrary from the proper person direct or personscause any payment or delivery thereof, that a fact or an event to direct or cause any payment or delivery thereof to be made, or to enforce any obligation of any Person to perform any other act. The Administrative Agent shall be under no liability to any Person by reason of which an action would any failure on the part of any other Person to perform such Person’s obligations under any agreement involving or might be taken relating in any way to the Escrowed Shares or the disposition thereof by the Escrow Grantors. Except as provided in Section 1.2(b), the Administrative Agent does shall not exist be obligated to recognize any agreement between any or has all of the Grantors and any other Persons.
(ii) The Administrative Agent shall not occurred, without incurring liability be liable to the Grantors or to any other Person for any action taken or omitted, omitted by it in good faith and in the exercise of its own best judgment. The Administrative Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Administrative Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but as to the acceptability and reliability of any information therein contained) which is believed by the Administrative Agent to be genuine and to be signed or presented by the proper Person or Persons.
(e) The Grantors shall pay all income, withholding and any other taxes imposed on or measured by income which are attributable to income from the Escrowed Shares and the Disposition Proceeds for the time all or any part thereof are held in escrow hereunder, and shall file all tax and information returns applicable thereto. To the extent that the Administrative Agent becomes liable for the payment of taxes, including withholding taxes, in reliance upon respect of income derived from the Escrowed Shares and Disposition Proceeds, the Administrative Agent may but shall not be obligated to pay such assumption.
6.4 Following the receipt taxes. The Administrative Agent may withhold or offset from any amount payable by the Escrow Administrative Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if such notice shall relate to the other parties hereto, notify Grantors such parties thereof in writing; but amount as the failure by the Escrow Administrative Agent to give such notice shall not relieve any party from any liability which such party may have to the Escrow Agent hereunder. In the event of the receipt of such notice, the Escrow Agent, determines in its sole discretion, may (i) commence an action in discretion to be sufficient to provide for the nature payment of interpleader in an appropriate court to determine ownership or disposition of such taxes; alternately any share certificates representing Shares in such amount paid by the possession of Escrow Agent; (ii) deposit any share certificates representing Shares in the possession of Escrow Administrative Agent with the clerk of any appropriate court; or (iii) retain any share certificates representing Shares in the possession of Escrow Agent pending receipt of (a) consistent written instructions from each of Skyway, Dupont, and shall become a duly authorized representative acting on behalf of all part of the Parties involvedObligations. In addition, as to the disposition thereof or (b) a final, non-appealable order of a court having jurisdiction over all of the Parties directing to whom and under what circumstances any share certificates representing Shares and/or the aircraft title and FAA certificate in the possession of Escrow Agent are to be delivered.
6.5 The Escrow Agent shall be entitled to reimbursement from Skyway and Dupont, jointly and severally, for all expenses paid or incurred by it in the administration of its duties hereunder.
6.6 The Escrow Administrative Agent shall be indemnified and held harmless by Skyway and Dupont, jointly and severally, the Grantors from and against any liability for such taxes and all liabilitiesfor any penalties or interest in respect of taxes on such investment income or payments in the manner provided in subparagraph (k) below.
(f) The Administrative Agent is acting as an escrow agent only with respect to the Escrowed Shares and related Restricted Disposition Proceeds (as defined below). If any dispute arises as to whether the Administrative Agent is obligated to deliver the Escrowed Shares or as to whom the Escrowed Shares are to be delivered, lossesthe Administrative Agent shall not be required to make any delivery, costs and expenses, including, without limitation, (a) reasonable attorneys' fees and disbursements but in such event the Administrative Agent may hold the Escrowed Shares until receipt by the Administrative Agent of the Disposition Proceeds and (bi) usual and customary expenses involved instructions in discovery proceedings and testimonywriting, signed by all parties which have, or claim to have, an interest in connection with any claimthe Escrowed Shares, action, suit or other proceeding which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, directing the services disposition of the Escrow Agent hereunderEscrowed Shares, or (ii) in the absence of such writing, a final judgment from a court of competent jurisdiction or final binding arbitration award providing for the disposition of the Escrowed Shares. In addition, the Escrow .
(g) The Administrative Agent shall be entitled to receive reimbursement from Skyway and Dupont jointly and severally, fees (the Grantors for all expenses paid or incurred by the Administrative Agent in amounts calculated at the Escrow Agent's customary rates) for time devoted to matters arising out administration of or related to its services duties hereunder, including, without limitationbut not limited to, in connection all attorneys’ fees, advisors’ and consultants’ fees and disbursements and all taxes or other governmental charges.
(h) The Administrative Agent may resign as escrow agent at any time and be discharged from its duties as escrow agent hereunder by giving the Grantors at least 30 days’ notice thereof. As soon as practicable after its resignation, the Administrative Agent shall turn over to a successor escrow agent appointed by it and the Grantors all Escrowed Shares held hereunder upon presentation of a document appointing the new escrow agent and its acceptance thereof. If no new escrow agent is so appointed within the 60-day period following such notice of resignation, the Administrative Agent may deposit the Escrowed Shares with any such claim, action, suit or other proceedingcourt it deems appropriate.
6.7 (i) From time to time on and after the date hereof, including without limitation concurrently with the Parties other than delivery of a written notice as provided in Section 1.02(b), the Escrow Agent Grantors shall deliver or cause to be delivered to the Escrow Administrative Agent such further documents and instruments and shall do or and cause to be done such further acts as the Escrow Administrative Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Escrow Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
6.8 The Escrow Agent may resign at any time (j) It is agreed that the Grantor shall retain all rights to dividends, all rights to vote and be discharged from its duties as all other rights in respect of ownership of the escrow agent hereunder by its giving Escrowed Shares, subject only to the other parties hereto at least thirty (30) days prior written notice thereof in accordance with the terms hereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the other Parties, jointly, any share certificates representing Shares Security Interest in the possession of Escrow Agent upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new agent is so appointed within the sixty Disposition Proceeds Collateral (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit any share certificates representing Shares in the possession of Escrow Agent with the Circuit Court for Pinellas County, Florida.
6.9 The Escrow Agent shall resign and be discharged from its duties each as the escrow agent hereunder if so requested in writing at any time by the other Parties, jointlydefined below); provided, however, that such resignation any certificated Restricted Equity Interests received as a dividend or other distribution in respect of Escrowed Shares shall become effective only upon acceptance be delivered to the Administrative Agent in escrow to be held pursuant to the terms of appointment by a successor escrow agent as provided in Section 6.8 hereofthis Agreement.
6.10 Following resignation and/or discharge of the Escrow Agent(k) EACH GRANTOR SHALL AND DOES HEREBY JOINTLY AND SEVERALLY INDEMNIFY AND HOLD THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS AND OTHER SECURED PARTIES AND THEIR RESPECTIVE SHAREHOLDERS, the provisions of this Section 6 shall nonetheless continue to be applicable with respect to the Escrow AgentOFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS-IN-FACT AND AFFILIATES (EACH AN “INDEMNITEE” AND COLLECTIVELY, THE “INDEMN1TEES”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, COSTS, DAMAGES, JUDGMENTS, ATTORNEYS FEES, EXPENSES, OBLIGATIONS AND LIABILITIES OF ANY KIND OR NATURE INCLUDING REASONABLE ATTORNEYS FEES AND EXPENSES INCURRED IN CONNECTION THEREWITH (“LIABILITIES”) WHICH ANY INDEMNITEE INCURS OR SUSTAINS, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OF THE ADMINISTRATIVE AGENT HEREUNDER, THE ACTIONS OR OMISSIONS OF ANY INDEMNITEE IN CONNECTION WITH THIS AGREEMENT, THE ESCROWED SHARES AND/OR THE DISPOSITION PROCEEDS HELD BY THE ADMINISTRATIVE AGENT HEREUNDER OR ANY INCOME EARNED THEREFROM INCLUDING, WITHOUT LIMITATION, LIABILITIES WHICH ARISE IN WHOLE OR IN PART FROM THE NEGLIGENCE, WHETHER SOLE OR CONCURRENT ON THE PART OF ANY INDEMNITEE BUT EXPRESSLY EXCLUDING THEREFROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SUCH INDEMNITEE. THE FOREGOING INDEMNITY SHALL SURVIVE SATISFACTION OF THE OBLIGATIONS AND TERMINATION OF THIS AGREEMENT.
Appears in 1 contract
Samples: Escrow and Security Agreement (Sonic Automotive Inc)
Terms of Escrow. Except (a) The parties hereby appoint the Administrative Agent as escrow agent in accordance with the case terms and conditions set forth herein, and the Administrative Agent hereby accepts such appointment as escrow agent.
(b) The Administrative Agent shall disburse all or any part of the willful misconduct Escrowed Shares as follows: any time the Administrative Agent receives (i) a written notification executed by a Grantor (or gross negligence such Grantor’s successor interest to the Escrowed Shares) advising the Administrative Agent of a proposed Disposition (as defined below) of Escrowed Shares or Restricted Disposition Proceeds, (ii) (subject to Section 4.04(a)) all Disposition Proceeds (as herein defined) paid or payable to Grantors in respect of such Escrowed Shares, and (iii) if other than cash, duly executed instruments of assignment and delivery, the Administrative Agent shall immediately release such portion of the Escrow AgentEscrowed Shares, the following provisions shall apply:
6.1 The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it subject to be taken or omitted, in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel clause (including counsel chosen by the Escrow Agentf), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as is specified in such written notice to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of the this Escrow Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior Persons specified in such written consent theretonotice.
6.2 (c) The Escrow Administrative Agent shall not be responsible for the sufficiencysufficiency or accuracy of the form of, accuracy, form, or the execution, validity, value or genuineness of of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Administrative Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority authority, or rights of the persons Persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions hereofor this Agreement.
6.3 The Escrow (i) In its capacity as escrow agent, the Administrative Agent shall have the right no duties or responsibilities other than those expressly set forth herein and, except as expressly set forth herein, shall have no duty to assumeenforce any obligation of any Person, in the absence to make any payment or delivery of written notice Disposition Proceeds, or to the contrary from the proper person direct or personscause any payment or delivery thereof, that a fact or an event to direct or cause any payment or delivery thereof to be made, or to enforce any obligation of any Person to perform any other act. The Administrative Agent shall be under no liability to any Person by reason of which an action would any failure on the part of any other Person to perform such Person’s obligations under any agreement involving or might be taken relating in any way to the Escrowed Shares or the Disposition thereof by the Escrow Grantors.
(ii) The Administrative Agent does in its role as escrow agent shall not exist be liable to the Grantors or has not occurred, without incurring liability to any other Person for any action taken or omitted, omitted by it in good faith and in the exercise of its own best judgment. The Administrative Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Administrative Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but as to the acceptability and reliability of any information therein contained) which is believed by the Administrative Agent to be genuine and to be signed or presented by the proper Person or Persons.
(e) The Grantors shall pay all income, withholding and any other taxes imposed on or measured by income which are attributable to income from the Escrowed Shares and the Disposition Proceeds for the time all or any part thereof are held in escrow hereunder, and shall file all tax and information returns applicable thereto. To the extent that the Administrative Agent becomes liable for the payment of taxes, including withholding taxes, in reliance upon respect of income derived from the Escrowed Shares and Disposition Proceeds, the Administrative Agent may but shall not be obligated to pay such assumption.
6.4 Following the receipt taxes. The Administrative Agent may withhold or offset from any amount payable by the Escrow Administrative Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if such notice shall relate to the other parties hereto, notify Grantors such parties thereof in writing; but amount as the failure by the Escrow Administrative Agent to give such notice shall not relieve any party from any liability which such party may have to the Escrow Agent hereunder. In the event of the receipt of such notice, the Escrow Agent, determines in its sole discretion, may (i) commence an action in discretion to be sufficient to provide for the nature payment of interpleader in an appropriate court to determine ownership or disposition of such taxes; alternately any share certificates representing Shares in such amount paid by the possession of Escrow Agent; (ii) deposit any share certificates representing Shares in the possession of Escrow Administrative Agent with the clerk of any appropriate court; or (iii) retain any share certificates representing Shares in the possession of Escrow Agent pending receipt of (a) consistent written instructions from each of Skyway, Dupont, and shall become a duly authorized representative acting on behalf of all part of the Parties involvedObligations. In addition, as to the disposition thereof or (b) a final, non-appealable order of a court having jurisdiction over all of the Parties directing to whom and under what circumstances any share certificates representing Shares and/or the aircraft title and FAA certificate in the possession of Escrow Agent are to be delivered.
6.5 The Escrow Agent shall be entitled to reimbursement from Skyway and Dupont, jointly and severally, for all expenses paid or incurred by it in the administration of its duties hereunder.
6.6 The Escrow Administrative Agent shall be indemnified and held harmless by Skyway and Dupont, jointly and severally, the Grantors from and against any liability for such taxes and all liabilitiesfor any penalties or interest in respect of taxes on such investment income or payments in the manner provided in subparagraph (k) below.
(f) The Administrative Agent is acting as an escrow agent only with respect to the Escrowed Shares and related Restricted Disposition Proceeds (as defined in Section 2.01 below). If any dispute arises as to whether the Administrative Agent is obligated to deliver the Escrowed Shares or as to whom the Escrowed Shares are to be delivered, lossesthe Administrative Agent shall not be required to make any delivery, costs and expenses, including, without limitation, (a) reasonable attorneys' fees and disbursements but in such event the Administrative Agent may hold the Escrowed Shares until receipt by the Administrative Agent of the Disposition Proceeds and (bi) usual and customary expenses involved instructions in discovery proceedings and testimonywriting, signed by all parties which have, or claim to have, an interest in connection with any claimthe Escrowed Shares, action, suit or other proceeding which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, directing the services disposition of the Escrow Agent hereunderEscrowed Shares, or (ii) in the absence of such writing, a final judgment from a court of competent jurisdiction or final binding arbitration award providing for the disposition of the Escrowed Shares. In addition, the Escrow .
(g) The Administrative Agent shall be entitled to receive reimbursement from Skyway and Dupont jointly and severally, fees (the Grantors for all expenses paid or incurred by the Administrative Agent in amounts calculated at the Escrow Agent's customary rates) for time devoted to matters arising out administration of or related to its services duties hereunder, including, without limitationbut not limited to, in connection all attorneys’, advisors’ and consultants’ fees and expenses and all taxes or other governmental charges.
(h) The Administrative Agent may resign as escrow agent at any time and be discharged from its duties as escrow agent hereunder. As soon as practicable after its resignation, the Administrative Agent shall turn over to a successor escrow agent appointed by it and the Grantors all Escrowed Shares held hereunder upon presentation of a document appointing the successor escrow agent and its acceptance thereof. If no successor escrow agent is so appointed within the 30-day period following such notice of resignation, the Administrative Agent may deposit the Escrowed Shares with any such claim, action, suit or other proceedingcourt in the United States it deems appropriate.
6.7 (i) From time to time on and after the date hereof, including without limitation concurrently with the Parties other than delivery of a written notice as provided in Section 1.02(b), the Escrow Agent Grantors shall deliver or cause to be delivered to the Escrow Administrative Agent such further documents and instruments and shall do or and cause to be done such further acts as the Escrow Administrative Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Escrow Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
6.8 The Escrow Agent may resign at any time (j) It is agreed that the Grantor shall retain all rights to dividends, all rights to vote and be discharged from its duties as all other rights in respect of ownership of the escrow agent hereunder by its giving Escrowed Shares, subject only to the other parties hereto at least thirty (30) days prior written notice thereof in accordance with the terms hereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the other Parties, jointly, any share certificates representing Shares Security Interest in the possession of Escrow Agent upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new agent is so appointed within the sixty Disposition Proceeds Collateral (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit any share certificates representing Shares each as defined in the possession of Escrow Agent with the Circuit Court for Pinellas County, Florida.
6.9 The Escrow Agent shall resign and be discharged from its duties as the escrow agent hereunder if so requested in writing at any time by the other Parties, jointlySection 2.01 below); provided, howeverthat any certificated Restricted Equity Interests received as a dividend or other distribution in respect of Escrowed Shares shall be delivered to the Administrative Agent, that such resignation shall become effective only upon acceptance in escrow, to be held pursuant to the terms of appointment by a successor escrow agent as provided in Section 6.8 hereofthis Agreement.
6.10 Following resignation and/or discharge of the Escrow Agent(k) EACH GRANTOR SHALL AND DOES HEREBY JOINTLY AND SEVERALLY INDEMNIFY AND HOLD THE ADMINISTRATIVE AGENT AND EACH OF THE SECURED PARTIES AND THEIR RESPECTIVE SHAREHOLDERS, the provisions of this Section 6 shall nonetheless continue to be applicable with respect to the Escrow AgentOFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS-IN-FACT AND AFFILIATES (EACH AN “INDEMNITEE” AND COLLECTIVELY, THE “INDEMN1TEES”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, COSTS, DAMAGES, JUDGMENTS, EXPENSES, OBLIGATIONS AND LIABILITIES OF ANY KIND OR NATURE INCLUDING ATTORNEYS FEES AND EXPENSES INCURRED IN CONNECTION THEREWITH (“LIABILITIES”) WHICH ANY INDEMNITEE INCURS OR SUSTAINS, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OF THE ADMINISTRATIVE AGENT HEREUNDER, THE ACTIONS OR OMISSIONS OF ANY INDEMNITEE IN CONNECTION WITH THIS AGREEMENT, THE ESCROWED SHARES AND/OR THE DISPOSITION PROCEEDS HELD BY THE ADMINISTRATIVE AGENT HEREUNDER OR ANY INCOME EARNED THEREFROM INCLUDING, WITHOUT LIMITATION, LIABILITIES WHICH ARISE IN WHOLE OR IN PART FROM THE NEGLIGENCE, WHETHER SOLE OR CONCURRENT ON THE PART OF ANY INDEMNITEE BUT EXPRESSLY EXCLUDING THEREFROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SUCH INDEMNITEE. THE FOREGOING INDEMNITY SHALL SURVIVE SATISFACTION OF THE OBLIGATIONS AND TERMINATION OF THIS AGREEMENT.
Appears in 1 contract
Samples: Escrow and Security Agreement (Asbury Automotive Group Inc)
Terms of Escrow. Except (1) The parties hereby appoint the Administrative Agent as escrow agent in accordance with the case terms and conditions set forth herein, and the Administrative Agent hereby accepts such appointment as escrow agent.
(a) The Administrative Agent shall disburse all or any part of the willful misconduct Escrowed Shares as follows: any time the Administrative Agent receives (i) a written notification executed by a Grantor (or gross negligence such Grantor’s successor interest to the Escrowed Shares) advising the Administrative Agent of a proposed Disposition (as defined below) of Escrowed Shares or Restricted Disposition Proceeds, (ii) (subject to Section 4.04(a)) all Disposition Proceeds (as herein defined) paid or payable to Grantors in respect of such Escrowed Shares, and (iii) if other than cash, duly executed instruments of assignment and delivery, the Administrative Agent shall immediately release such portion of the Escrow AgentEscrowed Shares, the following provisions shall apply:
6.1 The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it subject to be taken or omitted, in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel clause (including counsel chosen by the Escrow Agentf), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as is specified in such written notice to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of the this Escrow Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior Persons specified in such written consent theretonotice.
6.2 (b) The Escrow Administrative Agent shall not be responsible for the sufficiencysufficiency or accuracy of the form of, accuracy, form, or the execution, validity, value or genuineness of of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Administrative Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority authority, or rights of the persons Persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions hereofor this Agreement.
6.3 The Escrow (1) In its capacity as escrow agent, the Administrative Agent shall have the right no duties or responsibilities other than those expressly set forth herein and, except as expressly set forth herein, shall have no duty to assumeenforce any obligation of any Person, in the absence to make any payment or delivery of written notice Disposition Proceeds, or to the contrary from the proper person direct or personscause any payment or delivery thereof, that a fact or an event to direct or cause any payment or delivery thereof to be made, or to enforce any obligation of any Person to perform any other act. The Administrative Agent shall be under no liability to any Person by reason of which an action would any failure on the part of any other Person to perform such Person’s obligations under any agreement involving or might be taken relating in any way to the Escrowed Shares or the Disposition thereof by the Escrow Grantors.
(i) The Administrative Agent does in its role as escrow agent shall not exist be liable to the Grantors or has not occurred, without incurring liability to any other Person for any action taken or omitted, omitted by it in good faith and in the exercise of its own best judgment. The Administrative Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Administrative Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but as to the acceptability and reliability of any information therein contained) which is believed by the Administrative Agent to be genuine and to be signed or presented by the proper Person or Persons.
(d) The Grantors shall pay all income, withholding and any other taxes imposed on or measured by income which are attributable to income from the Escrowed Shares and the Disposition Proceeds for the time all or any part thereof are held in escrow hereunder, and shall file all tax and information returns applicable thereto. To the extent that the Administrative Agent becomes liable for the payment of taxes, including withholding taxes, in reliance upon respect of income derived from the Escrowed Shares and Disposition Proceeds, the Administrative Agent may but shall not be obligated to pay such assumption.
6.4 Following the receipt taxes. The Administrative Agent may withhold or offset from any amount payable by the Escrow Administrative Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if such notice shall relate to the other parties hereto, notify Grantors such parties thereof in writing; but amount as the failure by the Escrow Administrative Agent to give such notice shall not relieve any party from any liability which such party may have to the Escrow Agent hereunder. In the event of the receipt of such notice, the Escrow Agent, determines in its sole discretion, may (i) commence an action in discretion to be sufficient to provide for the nature payment of interpleader in an appropriate court to determine ownership or disposition of such taxes; alternately any share certificates representing Shares in such amount paid by the possession of Escrow Agent; (ii) deposit any share certificates representing Shares in the possession of Escrow Administrative Agent with the clerk of any appropriate court; or (iii) retain any share certificates representing Shares in the possession of Escrow Agent pending receipt of (a) consistent written instructions from each of Skyway, Dupont, and shall become a duly authorized representative acting on behalf of all part of the Parties involvedObligations. In addition, as to the disposition thereof or (b) a final, non-appealable order of a court having jurisdiction over all of the Parties directing to whom and under what circumstances any share certificates representing Shares and/or the aircraft title and FAA certificate in the possession of Escrow Agent are to be delivered.
6.5 The Escrow Agent shall be entitled to reimbursement from Skyway and Dupont, jointly and severally, for all expenses paid or incurred by it in the administration of its duties hereunder.
6.6 The Escrow Administrative Agent shall be indemnified and held harmless by Skyway and Dupont, jointly and severally, the Grantors from and against any liability for such taxes and all liabilitiesfor any penalties or interest in respect of taxes on such investment income or payments in the manner provided in subparagraph (k) below.
(e) The Administrative Agent is acting as an escrow agent only with respect to the Escrowed Shares and related Restricted Disposition Proceeds (as defined in Section 2.01 below). If any dispute arises as to whether the Administrative Agent is obligated to deliver the Escrowed Shares or as to whom the Escrowed Shares are to be delivered, lossesthe Administrative Agent shall not be required to make any delivery, costs and expenses, including, without limitation, (a) reasonable attorneys' fees and disbursements but in such event the Administrative Agent may hold the Escrowed Shares until receipt by the Administrative Agent of the Disposition Proceeds and (bi) usual and customary expenses involved instructions in discovery proceedings and testimonywriting, signed by all parties which have, or claim to have, an interest in connection with any claimthe Escrowed Shares, action, suit or other proceeding which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, directing the services disposition of the Escrow Agent hereunderEscrowed Shares, or (ii) in the absence of such writing, a final judgment from a court of competent jurisdiction or final binding arbitration award providing for the disposition of the Escrowed Shares. In addition, the Escrow .
(f) The Administrative Agent shall be entitled to receive reimbursement from Skyway and Dupont jointly and severally, fees (the Grantors for all expenses paid or incurred by the Administrative Agent in amounts calculated at the Escrow Agent's customary rates) for time devoted to matters arising out administration of or related to its services duties hereunder, including, without limitationbut not limited to, in connection all attorneys’, advisors’ and consultants’ fees and expenses and all taxes or other governmental charges.
(g) The Administrative Agent may resign as escrow agent at any time and be discharged from its duties as escrow agent hereunder. As soon as practicable after its resignation, the Administrative Agent shall turn over to a successor escrow agent appointed by it and the Grantors all Escrowed Shares held hereunder upon presentation of a document appointing the successor escrow agent and its acceptance thereof. If no successor escrow agent is so appointed within the 30-day period following such notice of resignation, the Administrative Agent may deposit the Escrowed Shares with any such claim, action, suit or other proceedingcourt in the United States it deems appropriate.
6.7 (h) From time to time on and after the date hereof, including without limitation concurrently with the Parties other than delivery of a written notice as provided in Section 1.02(b), the Escrow Agent Grantors shall deliver or cause to be delivered to the Escrow Administrative Agent such further documents and instruments and shall do or and cause to be done such further acts as the Escrow Administrative Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Escrow Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
6.8 The Escrow Agent may resign at any time (j) It is agreed that the Grantor shall retain all rights to dividends, all rights to vote and be discharged from its duties as all other rights in respect of ownership of the escrow agent hereunder by its giving Escrowed Shares, subject only to the other parties hereto at least thirty (30) days prior written notice thereof in accordance with the terms hereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the other Parties, jointly, any share certificates representing Shares Security Interest in the possession of Escrow Agent upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new agent is so appointed within the sixty Disposition Proceeds Collateral (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit any share certificates representing Shares each as defined in the possession of Escrow Agent with the Circuit Court for Pinellas County, Florida.
6.9 The Escrow Agent shall resign and be discharged from its duties as the escrow agent hereunder if so requested in writing at any time by the other Parties, jointlySection 2.01 below); provided, howeverthat any certificated Restricted Equity Interests received as a dividend or other distribution in respect of Escrowed Shares shall be delivered to the Administrative Agent, that such resignation shall become effective only upon acceptance in escrow, to be held pursuant to the terms of appointment by a successor escrow agent as provided in Section 6.8 hereofthis Agreement.
6.10 Following resignation and/or discharge of the Escrow Agent(k) EACH GRANTOR SHALL AND DOES HEREBY JOINTLY AND SEVERALLY INDEMNIFY AND HOLD THE ADMINISTRATIVE AGENT AND EACH OF THE SECURED PARTIES AND THEIR RESPECTIVE SHAREHOLDERS, the provisions of this Section 6 shall nonetheless continue to be applicable with respect to the Escrow AgentOFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS-IN-FACT AND AFFILIATES (EACH AN “INDEMNITEE” AND COLLECTIVELY, THE “INDEMN1TEES”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, COSTS, DAMAGES, JUDGMENTS, EXPENSES, OBLIGATIONS AND LIABILITIES OF ANY KIND OR NATURE INCLUDING ATTORNEYS FEES AND EXPENSES INCURRED IN CONNECTION THEREWITH (“LIABILITIES”) WHICH ANY INDEMNITEE INCURS OR SUSTAINS, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OF THE ADMINISTRATIVE AGENT HEREUNDER, THE ACTIONS OR OMISSIONS OF ANY INDEMNITEE IN CONNECTION WITH THIS AGREEMENT, THE ESCROWED SHARES AND/OR THE DISPOSITION PROCEEDS HELD BY THE ADMINISTRATIVE AGENT HEREUNDER OR ANY INCOME EARNED THEREFROM INCLUDING, WITHOUT LIMITATION, LIABILITIES WHICH ARISE IN WHOLE OR IN PART FROM THE NEGLIGENCE, WHETHER SOLE OR CONCURRENT ON THE PART OF ANY INDEMNITEE BUT EXPRESSLY EXCLUDING THEREFROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SUCH INDEMNITEE. THE FOREGOING INDEMNITY SHALL SURVIVE SATISFACTION OF THE OBLIGATIONS AND TERMINATION OF THIS AGREEMENT.
Appears in 1 contract
Samples: Escrow and Security Agreement (Asbury Automotive Group Inc)
Terms of Escrow. Except in the case of the willful misconduct or gross negligence of the Escrow Agent, the following provisions shall apply:
6.1 (a) The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in hold the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution Collateral and the validity and effectiveness Relevant Shares in escrow until the earlier to occur of its provisions, but also as to the truth and acceptability of any information therein contained(i) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of the this Escrow Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.
6.2 The Escrow Agent shall not be responsible for the sufficiency, accuracy, form, execution, validity, value or genuineness of any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions hereof.
6.3 The Escrow Agent shall have the right to assume, in the absence of written notice to the contrary from the proper person or persons, that a fact or an event by reason of which an action would or might be taken by the Escrow Agent does not exist or has not occurred, without incurring liability for any action taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption.
6.4 Following the receipt by the Escrow Agent of a notice, executed by each of the Company, the Sellers and the Purchaser, stating that the Closing under the Purchase Agreement is to take place and directing the disposition of the Escrow Fund in the manner set forth in the Purchase Agreement or (ii) as set forth in subparagraph (b) below.
(b) If the Escrow Agent, prior to delivering or causing to be delivered the Escrow Fund in accordance herewith, receives notice of objection, dispute, or other assertion in accordance with any demand or claim or of the commencement provisions of any action, suit or proceedingthis Agreement, the Escrow Agent shallshall continue to hold the Escrow Fund until such time as the Escrow Agent shall receive (i) written instructions jointly executed by the Purchaser, if Sellers and the Company, directing distribution of such notice shall relate to Escrow Fund, or (ii) a certified copy of a judgment, order or decree of a court of competent jurisdiction, final beyond the other parties heretoright of appeal, notify such parties thereof in writing; but the failure by directing the Escrow Agent to give such notice shall not relieve distribute said Escrow Fund to any party from or parties hereto or as such judgment, order or decree shall otherwise specify (including any liability which such party may have to order directing the Escrow Agent hereunder. In to deposit the event Escrow Fund into the court rendering such order, pending determination of any dispute between any of the receipt of such notice, the Escrow Agent, in its sole discretion, may (i) commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of any share certificates representing Shares in the possession of Escrow Agent; (ii) deposit any share certificates representing Shares in the possession of Escrow Agent with the clerk of any appropriate court; or (iii) retain any share certificates representing Shares in the possession of Escrow Agent pending receipt of (a) consistent written instructions from each of Skyway, Dupont, and a duly authorized representative acting on behalf of all of the Parties involved, as to the disposition thereof or (b) a final, non-appealable order of a court having jurisdiction over all of the Parties directing to whom and under what circumstances any share certificates representing Shares and/or the aircraft title and FAA certificate in the possession of Escrow Agent are to be delivered.
6.5 The Escrow Agent shall be entitled to reimbursement from Skyway and Dupont, jointly and severally, for all expenses paid or incurred by it in the administration of its duties hereunder.
6.6 The Escrow Agent shall be indemnified and held harmless by Skyway and Dupont, jointly and severally, from and against any and all liabilities, losses, costs and expenses, including, without limitation, (a) reasonable attorneys' fees and disbursements and (b) usual and customary expenses involved in discovery proceedings and testimony, in connection with any claim, action, suit or other proceeding which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, or the Sharesparties). In addition, the Escrow Agent shall be entitled have the right to receive from Skyway and Dupont jointly and severally, fees (in amounts calculated at deposit any of the Escrow Agent's customary rates) for time devoted Fund with a court of competent jurisdiction without liability to matters arising out any party if said dispute is not resolved within 15 days of or related to its services hereunder, including, without limitation, in connection with receipt of any such claim, action, suit or other proceeding.
6.7 From time to time on and after the date hereof, the Parties other than the Escrow Agent shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Escrow Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
6.8 The Escrow Agent may resign at any time and be discharged from its duties as the escrow agent hereunder by its giving the other parties hereto at least thirty (30) days prior written notice thereof in accordance with the terms hereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the other Parties, jointly, any share certificates representing Shares in the possession of Escrow Agent upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new agent is so appointed within the sixty (60) day period following the giving of such notice of resignationobjection, the Escrow Agent may deposit any share certificates representing Shares in the possession of Escrow Agent with the Circuit Court for Pinellas County, Floridadispute or otherwise.
6.9 The Escrow Agent shall resign and be discharged from its duties as the escrow agent hereunder if so requested in writing at any time by the other Parties, jointly; provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided in Section 6.8 hereof.
6.10 Following resignation and/or discharge of the Escrow Agent, the provisions of this Section 6 shall nonetheless continue to be applicable with respect to the Escrow Agent.
Appears in 1 contract
Terms of Escrow. Except (a) The parties hereby appoint the Administrative Agent as escrow agent in accordance with the case of the willful misconduct or gross negligence of the Escrow Agent, the following provisions shall apply:
6.1 The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith terms and in the exercise of its own best judgmentconditions set forth herein, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. xxxxxx accepts such appointment as escrow agent.
(b) The Escrow Administrative Agent shall not be bound by any notice or demand, disburse all or any waiver, modification, termination or rescission part of the this Escrow Agreement unless evidenced Escrowed Shares as follows: any time the Administrative Agent receives (i) a written notification executed by a writing delivered Grantor (or such Grantor’s successor interest to the Escrow Escrowed Shares), advising the Administrative Agent signed by the proper party of a proposed Disposition (as defined below) of Escrowed Shares or parties other Restricted Disposition Proceeds, (ii) (subject to Section 4.5(a)(iii)) all Disposition Proceeds (as herein defined) paid or payable to Grantors in respect of such Escrowed Shares and, (iii) if other than cash, duly executed instruments of assignment and delivery, the duties or rights Administrative Agent shall immediately release such portion of the Escrow Agent are affectedEscrowed Shares, unless it shall have given its prior subject as herein provided, as is specified in such written consent theretonotice to the Persons specified in such written notice.
6.2 (c) The Escrow Administrative Agent shall not be responsible for the sufficiencysufficiency or accuracy of the form of, accuracy, form, or the execution, validity, value or genuineness of of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Administrative Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority authority, or rights of the persons Persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions hereofor this Agreement.
6.3 The Escrow (i) In its capacity as escrow agent, the Administrative Agent shall have the right no duties or responsibilities other than those expressly set forth herein and except as expressly set forth herein, shall have no duty to assumeenforce any obligation of any Person, in the absence to make any payment or delivery of written notice Disposition Proceeds, or to the contrary from the proper person direct or personscause any payment or delivery thereof, that a fact or an event to direct or cause any payment or delivery thereof to be made, or to enforce any obligation of any Person to perform any other act. The Administrative Agent shall be under no liability to any Person by reason of which an action would any failure on the part of any other Person to perform such Person’s obligations under any agreement involving or might be taken relating in any way to the Escrowed Shares or the disposition thereof by the Escrow Grantors. Except as provided in Section 1.2(b), the Administrative Agent does shall not exist be obligated to recognize any agreement between any or has all of the Grantors and any other Persons.
(ii) The Administrative Agent shall not occurred, without incurring liability be liable to the Grantors or to any other Person for any action taken or omitted, omitted by it in good faith and in the exercise of its own best judgment. The Administrative Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Administrative Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but as to the acceptability and reliability of any information therein contained) which is believed by the Administrative Agent to be genuine and to be signed or presented by the proper Person or Persons.
(e) The Grantors shall pay all income, withholding and any other taxes imposed on or measured by income which are attributable to income from the Escrowed Shares and the Disposition Proceeds for the time all or any part thereof are held in escrow hereunder, and shall file all tax and information returns applicable thereto. To the extent that the Administrative Agent becomes liable for the payment of taxes, including withholding taxes, in reliance upon respect of income derived from the Escrowed Shares and Disposition Proceeds, the Administrative Agent may but shall not be obligated to pay such assumption.
6.4 Following the receipt taxes. The Administrative Agent may withhold or offset from any amount payable by the Escrow Administrative Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if such notice shall relate to the other parties hereto, notify Grantors such parties thereof in writing; but amount as the failure by the Escrow Administrative Agent to give such notice shall not relieve any party from any liability which such party may have to the Escrow Agent hereunder. In the event of the receipt of such notice, the Escrow Agent, determines in its sole discretion, may (i) commence an action in discretion to be sufficient to provide for the nature payment of interpleader in an appropriate court to determine ownership or disposition of such taxes; alternately any share certificates representing Shares in such amount paid by the possession of Escrow Agent; (ii) deposit any share certificates representing Shares in the possession of Escrow Administrative Agent with the clerk of any appropriate court; or (iii) retain any share certificates representing Shares in the possession of Escrow Agent pending receipt of (a) consistent written instructions from each of Skyway, Dupont, and shall become a duly authorized representative acting on behalf of all part of the Parties involvedObligations. In addition, as to the disposition thereof or (b) a final, non-appealable order of a court having jurisdiction over all of the Parties directing to whom and under what circumstances any share certificates representing Shares and/or the aircraft title and FAA certificate in the possession of Escrow Agent are to be delivered.
6.5 The Escrow Agent shall be entitled to reimbursement from Skyway and Dupont, jointly and severally, for all expenses paid or incurred by it in the administration of its duties hereunder.
6.6 The Escrow Administrative Agent shall be indemnified and held harmless by Skyway and Dupont, jointly and severally, the Grantors from and against any liability for such taxes and all liabilitiesfor any penalties or interest in respect of taxes on such investment income or payments in the manner provided in subparagraph (k) below.
(f) The Administrative Agent is acting as an escrow agent only with respect to the Escrowed Shares and related Restricted Disposition Proceeds (as defined below). If any dispute arises as to whether the Administrative Agent is obligated to deliver the Escrowed Shares or as to whom the Escrowed Shares are to be delivered, lossesthe Administrative Agent shall not be required to make any delivery, costs and expenses, including, without limitation, (a) reasonable attorneys' fees and disbursements but in such event the Administrative Agent may hold the Escrowed Shares until receipt by the Administrative Agent of the Disposition Proceeds and (bi) usual and customary expenses involved instructions in discovery proceedings and testimonywriting, signed by all parties which have, or claim to have, an interest in connection with any claimthe Escrowed Shares, action, suit or other proceeding which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, directing the services disposition of the Escrow Agent hereunderEscrowed Shares, or (ii) in the absence of such writing, a final judgment from a court of competent jurisdiction or final binding arbitration award providing for the disposition of the Escrowed Shares. In addition, the Escrow .
(g) The Administrative Agent shall be entitled to receive reimbursement from Skyway and Dupont jointly and severally, fees (the Grantors for all expenses paid or incurred by the Administrative Agent in amounts calculated at the Escrow Agent's customary rates) for time devoted to matters arising out administration of or related to its services duties hereunder, including, without limitationbut not limited to, in connection all attorneys’ fees, advisors’ and consultants’ fees and disbursements and all taxes or other governmental charges.
(h) The Administrative Agent may resign as escrow agent at any time and be discharged from its duties as escrow agent hereunder by giving the Grantors at least 30 days’ notice thereof. As soon as practicable after its resignation, the Administrative Agent shall turn over to a successor escrow agent appointed by it and the Grantors all Escrowed Shares held hereunder upon presentation of a document appointing the new escrow agent and its acceptance thereof. If no new escrow agent is so appointed within the 60-day period following such notice of resignation, the Administrative Agent may deposit the Escrowed Shares with any such claim, action, suit or other proceedingcourt it deems appropriate.
6.7 (i) From time to time on and after the date hereof, including without limitation concurrently with the Parties other than delivery of a written notice as provided in Section 1.02(b), the Escrow Agent Grantors shall deliver or cause to be delivered to the Escrow Administrative Agent such further documents and instruments and shall do or and cause to be done such further acts as the Escrow Administrative Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Escrow Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
6.8 The Escrow Agent may resign at any time (j) It is agreed that the Grantor shall retain all rights to dividends, all rights to vote and be discharged from its duties as all other rights in respect of ownership of the escrow agent hereunder by its giving Escrowed Shares, subject only to the other parties hereto at least thirty (30) days prior written notice thereof in accordance with the terms hereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the other Parties, jointly, any share certificates representing Shares Security Interest in the possession of Escrow Agent upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new agent is so appointed within the sixty Disposition Proceeds Collateral (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit any share certificates representing Shares in the possession of Escrow Agent with the Circuit Court for Pinellas County, Florida.
6.9 The Escrow Agent shall resign and be discharged from its duties each as the escrow agent hereunder if so requested in writing at any time by the other Parties, jointlydefined below); provided, however, that such resignation any certificated Restricted Equity Interests received as a dividend or other distribution in respect of Escrowed Shares shall become effective only upon acceptance be delivered to the Administrative Agent in escrow to be held pursuant to the terms of appointment by a successor escrow agent as provided in Section 6.8 hereofthis Agreement.
6.10 Following resignation and/or discharge of the Escrow Agent(k) EACH GRANTOR SHALL AND DOES HEREBY JOINTLY AND SEVERALLY INDEMNIFY AND HOLD THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS AND OTHER SECURED PARTIES AND THEIR RESPECTIVE SHAREHOLDERS, the provisions of this Section 6 shall nonetheless continue to be applicable with respect to the Escrow AgentOFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS-IN-FACT AND AFFILIATES (EACH AN “INDEMNITEE” AND COLLECTIVELY, THE “INDEMN1TEES”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, COSTS, DAMAGES, JUDGMENTS, ATTORNEYS FEES, EXPENSES, OBLIGATIONS AND LIABILITIES OF ANY KIND OR NATURE INCLUDING REASONABLE ATTORNEYS FEES AND EXPENSES INCURRED IN CONNECTION THEREWITH (“LIABILITIES”) WHICH ANY INDEMNITEE INCURS OR SUSTAINS, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OF THE ADMINISTRATIVE AGENT HEREUNDER, THE ACTIONS OR OMISSIONS OF ANY INDEMNITEE IN CONNECTION WITH THIS AGREEMENT, THE ESCROWED SHARES AND/OR THE DISPOSITION PROCEEDS HELD BY THE ADMINISTRATIVE AGENT HEREUNDER OR ANY INCOME EARNED THEREFROM INCLUDING, WITHOUT LIMITATION, LIABILITIES WHICH ARISE IN WHOLE OR IN PART FROM THE NEGLIGENCE, WHETHER SOLE OR CONCURRENT ON THE PART OF ANY INDEMNITEE BUT EXPRESSLY EXCLUDING THEREFROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SUCH INDEMNITEE. THE FOREGOING INDEMNITY SHALL SURVIVE SATISFACTION OF THE OBLIGATIONS AND TERMINATION OF THIS AGREEMENT.
Appears in 1 contract
Samples: Escrow and Security Agreement (Sonic Automotive Inc)
Terms of Escrow. Except (a) The parties hereby appoint the Administrative Agent as escrow agent in accordance with the case terms and conditions set forth herein, and the Administrative Agent hereby accepts such appointment as escrow agent.
(b) The Administrative Agent shall disburse all or any part of the willful misconduct Escrowed Shares as follows: any time the Administrative Agent receives (i) a written notification executed by a Grantor (or gross negligence such Grantor’s successor interest to the Escrowed Shares) advising the Administrative Agent of a proposed Disposition (as defined below) of Escrowed Shares or Restricted Disposition Proceeds, (ii) (subject to Section 4.04(a)) all Disposition Proceeds (as herein defined) paid or payable to Grantors in respect of such Escrowed Shares, and (iii) if other than cash, duly executed instruments of assignment and delivery, the Administrative Agent shall immediately release such portion of the Escrow AgentEscrowed Shares, the following provisions shall apply:
6.1 The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it subject to be taken or omitted, in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel clause (including counsel chosen by the Escrow Agentf), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as is specified in such written notice to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of the this Escrow Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior Persons specified in such written consent theretonotice.
6.2 (c) The Escrow Administrative Agent shall not be responsible for the sufficiencysufficiency or accuracy of the form of, accuracy, form, or the execution, validity, value or genuineness of of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Administrative Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority authority, or rights of the persons Persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions hereofor this Agreement.
6.3 The Escrow (i) In its capacity as escrow agent, the Administrative Agent shall have the right no duties or responsibilities other than those expressly set forth herein and, except as expressly set forth herein, shall have no duty to assumeenforce any obligation of any Person, in the absence to make any payment or delivery of written notice Disposition Proceeds, or to the contrary from the proper person direct or personscause any payment or delivery thereof, that a fact or an event to direct or cause any payment or delivery thereof to be made, or to enforce any obligation of any Person to perform any other act. The Administrative Agent shall be under no liability to any Person by reason of which an action would any failure on the part of any other Person to perform such Person’s obligations under any agreement involving or might be taken relating in any way to the Escrowed Shares or the Disposition thereof by the Escrow Grantors.
(ii) The Administrative Agent does in its role as escrow agent shall not exist be liable to the Grantors or has not occurred, without incurring liability to any other Person for any action taken or omitted, omitted by it in good faith and in the exercise of its own best judgment. The Administrative Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Administrative Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but as to the acceptability and reliability of any information therein contained) which is believed by the Administrative Agent to be genuine and to be signed or presented by the proper Person or Persons.
(e) The Grantors shall pay all income, withholding and any other taxes imposed on or measured by income which are attributable to income from the Escrowed Shares and the Disposition Proceeds for the time all or any part thereof are held in escrow hereunder, and shall file all tax and information returns applicable thereto. To the extent that the Administrative Agent becomes liable for the payment of taxes, including withholding taxes, in reliance upon respect of income derived from the Escrowed Shares and Disposition Proceeds, the Administrative Agent may but shall not be obligated to pay such assumption.
6.4 Following the receipt taxes. The Administrative Agent may withhold or offset from any amount payable by the Escrow Administrative Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if such notice shall relate to the other parties hereto, notify Grantors such parties thereof in writing; but amount as the failure by the Escrow Administrative Agent to give such notice shall not relieve any party from any liability which such party may have to the Escrow Agent hereunder. In the event of the receipt of such notice, the Escrow Agent, determines in its sole discretion, may (i) commence an action in discretion to be sufficient to provide for the nature payment of interpleader in an appropriate court to determine ownership or disposition of such taxes; alternately any share certificates representing Shares in such amount paid by the possession of Escrow Agent; (ii) deposit any share certificates representing Shares in the possession of Escrow Administrative Agent with the clerk of any appropriate court; or (iii) retain any share certificates representing Shares in the possession of Escrow Agent pending receipt of (a) consistent written instructions from each of Skyway, Dupont, and shall become a duly authorized representative acting on behalf of all part of the Parties involvedObligations. In addition, as to the disposition thereof or (b) a final, non-appealable order of a court having jurisdiction over all of the Parties directing to whom and under what circumstances any share certificates representing Shares and/or the aircraft title and FAA certificate in the possession of Escrow Agent are to be delivered.
6.5 The Escrow Agent shall be entitled to reimbursement from Skyway and Dupont, jointly and severally, for all expenses paid or incurred by it in the administration of its duties hereunder.
6.6 The Escrow Administrative Agent shall be indemnified and held harmless by Skyway and Dupont, jointly and severally, the Grantors from and against any liability for such taxes and all liabilitiesfor any penalties or interest in respect of taxes on such investment income or payments in the manner provided in subparagraph (k) below.
(f) The Administrative Agent is acting as an escrow agent only with respect to the Escrowed Shares and related Restricted Disposition Proceeds (as defined in Section 2.01 below). If any dispute arises as to whether the Administrative Agent is obligated to deliver the Escrowed Shares or as to whom the Escrowed Shares are to be delivered, lossesthe Administrative Agent shall not be required to make any delivery, costs and expenses, including, without limitation, (a) reasonable attorneys' fees and disbursements but in such event the Administrative Agent may hold the Escrowed Shares until receipt by the Administrative Agent of the Disposition Proceeds and (bi) usual and customary expenses involved instructions in discovery proceedings and testimonywriting, signed by all parties which have, or claim to have, an interest in connection with any claimthe Escrowed Shares, action, suit or other proceeding which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, directing the services disposition of the Escrow Agent hereunderEscrowed Shares, or (ii) in the absence of such writing, a final judgment from a court of competent jurisdiction or final binding arbitration award providing for the disposition of the Escrowed Shares. In addition, the Escrow .
(g) The Administrative Agent shall be entitled to receive reimbursement from Skyway and Dupont jointly and severally, fees (the Grantors for all expenses paid or incurred by the Administrative Agent in amounts calculated at the Escrow Agent's customary rates) for time devoted to matters arising out administration of or related to its services duties hereunder, including, without limitationbut not limited to, in connection all attorneys’, advisors’ and consultants’ fees and expenses and all taxes or other governmental charges.
(h) The Administrative Agent may resign as escrow agent at any time and be discharged from its duties as escrow agent hereunder. As soon as practicable after its resignation, the Administrative Agent shall turn over to a successor escrow agent appointed by it and the Grantors all Escrowed Shares held hereunder upon presentation of a document appointing the successor escrow agent and its acceptance thereof. If no successor escrow agent is so appointed within the 30-day period following such notice of resignation, the Administrative Agent may deposit the Escrowed Shares with any such claim, action, suit or other proceedingcourt in the United States it deems appropriate.
6.7 (i) From time to time on and after the date hereof, including without limitation concurrently with the Parties other than delivery of a written notice as provided in Section 1.02(b), the Escrow Agent Grantors shall deliver or cause to be delivered to the Escrow Administrative Agent such further documents and instruments and shall do or and cause to be done such further acts as the Escrow Administrative Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Escrow Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
6.8 The Escrow Agent may resign at any time (j) It is agreed that the Grantor shall retain all rights to dividends, all rights to vote and be discharged from its duties as all other rights in respect of ownership of the escrow agent hereunder by its giving Escrowed Shares, subject only to the other parties hereto at least thirty (30) days prior written notice thereof in accordance with the terms hereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the other Parties, jointly, any share certificates representing Shares Security Interest in the possession of Escrow Agent upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new agent is so appointed within the sixty Disposition Proceeds Collateral (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit any share certificates representing Shares each as defined in the possession of Escrow Agent with the Circuit Court for Pinellas County, Florida.
6.9 The Escrow Agent shall resign and be discharged from its duties as the escrow agent hereunder if so requested in writing at any time by the other Parties, jointlySection 2.01 below); provided, howeverthat any certificated Restricted Equity Interests received as a dividend or other distribution in respect of Escrowed Shares shall be delivered to the Administrative Agent, that such resignation shall become effective only upon acceptance in escrow, to be held pursuant to the terms of appointment by a successor escrow agent as provided in Section 6.8 hereofthis Agreement.
6.10 Following resignation and/or discharge of the Escrow Agent(k) EACH GRANTOR SHALL AND DOES HEREBY JOINTLY AND SEVERALLY INDEMNIFY AND HOLD THE ADMINISTRATIVE AGENT AND EACH OF THE SECURED PARTIES AND THEIR RESPECTIVE SHAREHOLDERS, the provisions of this Section 6 shall nonetheless continue to be applicable with respect to the Escrow Agent.OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS-IN-FACT AND AFFILIATES (EACH AN “INDEMNITEE” AND COLLECTIVELY, THE “INDEMNITEES”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, COSTS, DAMAGES, JUDGMENTS, EXPENSES, OBLIGATIONS AND LIABILITIES OF ANY KIND OR NATURE INCLUDING ATTORNEYS FEES AND EXPENSES INCURRED IN CONNECTION THEREWITH (“LIABILITIES”) WHICH ANY INDEMNITEE INCURS OR SUSTAINS, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OF THE ADMINISTRATIVE AGENT HEREUNDER, THE ACTIONS OR OMISSIONS OF ANY INDEMNITEE IN CONNECTION WITH THIS AGREEMENT, THE ESCROWED SHARES AND/OR THE DISPOSITION PROCEEDS
Appears in 1 contract
Samples: Escrow and Security Agreement (Asbury Automotive Group Inc)
Terms of Escrow. Except (1) The parties hereby appoint the Administrative Agent as escrow agent in accordance with the case terms and conditions set forth herein, and the Administrative Agent hereby accepts such appointment as escrow agent.
(a) The Administrative Agent shall disburse all or any part of the willful misconduct Escrowed Shares as follows: any time the Administrative Agent receives (i) a written notification executed by a Grantor (or gross negligence such Grantor’s successor interest to the Escrowed Shares) advising the Administrative Agent of a proposed Disposition (as defined below) of Escrowed Shares or Restricted Disposition Proceeds, (ii) (subject to Section 4.04(a)) all Disposition Proceeds (as herein defined) paid or payable to Grantors in respect of such Escrowed Shares, and (iii) if other than cash, duly executed instruments of assignment and delivery, the Administrative Agent shall immediately release such portion of the Escrow AgentEscrowed Shares, the following provisions shall apply:
6.1 The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it subject to be taken or omitted, in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel clause (including counsel chosen by the Escrow Agentf), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as is specified in such written notice to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of the this Escrow Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior Persons specified in such written consent theretonotice.
6.2 (b) The Escrow Administrative Agent shall not be responsible for the sufficiencysufficiency or accuracy of the form of, accuracy, form, or the execution, validity, value or genuineness of of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Administrative Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority authority, or rights of the persons Persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions hereofor this Agreement.
6.3 The Escrow (i) In its capacity as escrow agent, the Administrative Agent shall have the right no duties or responsibilities other than those expressly set forth herein and, except as expressly set forth herein, shall have no duty to assumeenforce any obligation of any Person, in the absence to make any payment or delivery of written notice Disposition Proceeds, or to the contrary from the proper person direct or personscause any payment or delivery thereof, that a fact or an event to direct or cause any payment or delivery thereof to be made, or to enforce any obligation of any Person to perform any other act. The Administrative Agent shall be under no liability to any Person by reason of which an action would any failure on the part of any other Person to perform such Person’s obligations under any agreement involving or might be taken relating in any way to the Escrowed Shares or the Disposition thereof by the Escrow Grantors.
(ii) The Administrative Agent does in its role as escrow agent shall not exist be liable to the Grantors or has not occurred, without incurring liability to any other Person for any action taken or omitted, omitted by it in good faith and in the exercise of its own best judgment. The Administrative Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Administrative Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but as to the acceptability and reliability of any information therein contained) which is believed by the Administrative Agent to be genuine and to be signed or presented by the proper Person or Persons.
(d) The Grantors shall pay all income, withholding and any other taxes imposed on or measured by income which are attributable to income from the Escrowed Shares and the Disposition Proceeds for the time all or any part thereof are held in escrow hereunder, and shall file all tax and information returns applicable thereto. To the extent that the Administrative Agent becomes liable for the payment of taxes, including withholding taxes, in reliance upon respect of income derived from the Escrowed Shares and Disposition Proceeds, the Administrative Agent may but shall not be obligated to pay such assumption.
6.4 Following the receipt taxes. The Administrative Agent may withhold or offset from any amount payable by the Escrow Administrative Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if such notice shall relate to the other parties hereto, notify Grantors such parties thereof in writing; but amount as the failure by the Escrow Administrative Agent to give such notice shall not relieve any party from any liability which such party may have to the Escrow Agent hereunder. In the event of the receipt of such notice, the Escrow Agent, determines in its sole discretion, may (i) commence an action in discretion to be sufficient to provide for the nature payment of interpleader in an appropriate court to determine ownership or disposition of such taxes; alternately any share certificates representing Shares in such amount paid by the possession of Escrow Agent; (ii) deposit any share certificates representing Shares in the possession of Escrow Administrative Agent with the clerk of any appropriate court; or (iii) retain any share certificates representing Shares in the possession of Escrow Agent pending receipt of (a) consistent written instructions from each of Skyway, Dupont, and shall become a duly authorized representative acting on behalf of all part of the Parties involvedObligations. In addition, as to the disposition thereof or (b) a final, non-appealable order of a court having jurisdiction over all of the Parties directing to whom and under what circumstances any share certificates representing Shares and/or the aircraft title and FAA certificate in the possession of Escrow Agent are to be delivered.
6.5 The Escrow Agent shall be entitled to reimbursement from Skyway and Dupont, jointly and severally, for all expenses paid or incurred by it in the administration of its duties hereunder.
6.6 The Escrow Administrative Agent shall be indemnified and held harmless by Skyway and Dupont, jointly and severally, the Grantors from and against any liability for such taxes and all liabilitiesfor any penalties or interest in respect of taxes on such investment income or payments in the manner provided in subparagraph (k) below.
(e) The Administrative Agent is acting as an escrow agent only with respect to the Escrowed Shares and related Restricted Disposition Proceeds (as defined in Section 2.01 below). If any dispute arises as to whether the Administrative Agent is obligated to deliver the Escrowed Shares or as to whom the Escrowed Shares are to be delivered, lossesthe Administrative Agent shall not be required to make any delivery, costs and expenses, including, without limitation, (a) reasonable attorneys' fees and disbursements but in such event the Administrative Agent may hold the Escrowed Shares until receipt by the Administrative Agent of the Disposition Proceeds and (bi) usual and customary expenses involved instructions in discovery proceedings and testimonywriting, signed by all parties which have, or claim to have, an interest in connection with any claimthe Escrowed Shares, action, suit or other proceeding which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, directing the services disposition of the Escrow Agent hereunderEscrowed Shares, or (ii) in the absence of such writing, a final judgment from a court of competent jurisdiction or final binding arbitration award providing for the disposition of the Escrowed Shares. In addition, the Escrow .
(f) The Administrative Agent shall be entitled to receive reimbursement from Skyway and Dupont jointly and severally, fees (the Grantors for all expenses paid or incurred by the Administrative Agent in amounts calculated at the Escrow Agent's customary rates) for time devoted to matters arising out administration of or related to its services duties hereunder, including, without limitationbut not limited to, in connection all attorneys’, advisors’ and consultants’ fees and expenses and all taxes or other governmental charges.
(g) The Administrative Agent may resign as escrow agent at any time and be discharged from its duties as escrow agent hereunder. As soon as practicable after its resignation, the Administrative Agent shall turn over to a successor escrow agent appointed by it and the Grantors all Escrowed Shares held hereunder upon presentation of a document appointing the successor escrow agent and its acceptance thereof. If no successor escrow agent is so appointed within the 30-day period following such notice of resignation, the Administrative Agent may deposit the Escrowed Shares with any such claim, action, suit or other proceedingcourt in the United States it deems appropriate.
6.7 (h) From time to time on and after the date hereof, including without limitation concurrently with the Parties other than delivery of a written notice as provided in Section 1.02(b), the Escrow Agent Grantors shall deliver or cause to be delivered to the Escrow Administrative Agent such further documents and instruments and shall do or and cause to be done such further acts as the Escrow Administrative Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Escrow Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
6.8 The Escrow Agent may resign at any time (j) It is agreed that the Grantor shall retain all rights to dividends, all rights to vote and be discharged from its duties as all other rights in respect of ownership of the escrow agent hereunder by its giving Escrowed Shares, subject only to the other parties hereto at least thirty (30) days prior written notice thereof in accordance with the terms hereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the other Parties, jointly, any share certificates representing Shares Security Interest in the possession of Escrow Agent upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new agent is so appointed within the sixty Disposition Proceeds Collateral (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit any share certificates representing Shares each as defined in the possession of Escrow Agent with the Circuit Court for Pinellas County, Florida.
6.9 The Escrow Agent shall resign and be discharged from its duties as the escrow agent hereunder if so requested in writing at any time by the other Parties, jointlySection 2.01 below); provided, howeverthat any certificated Restricted Equity Interests received as a dividend or other distribution in respect of Escrowed Shares shall be delivered to the Administrative Agent, that such resignation shall become effective only upon acceptance in escrow, to be held pursuant to the terms of appointment by a successor escrow agent as provided in Section 6.8 hereofthis Agreement.
6.10 Following resignation and/or discharge of the Escrow Agent(k) EACH GRANTOR SHALL AND DOES HEREBY JOINTLY AND SEVERALLY INDEMNIFY AND HOLD THE ADMINISTRATIVE AGENT AND EACH OF THE SECURED PARTIES AND THEIR RESPECTIVE SHAREHOLDERS, the provisions of this Section 6 shall nonetheless continue to be applicable with respect to the Escrow AgentOFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS-IN-FACT AND AFFILIATES (EACH AN “INDEMNITEE” AND COLLECTIVELY, THE “INDEMN1TEES”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, COSTS, DAMAGES, JUDGMENTS, EXPENSES, OBLIGATIONS AND LIABILITIES OF ANY KIND OR NATURE INCLUDING ATTORNEYS FEES AND EXPENSES INCURRED IN CONNECTION THEREWITH (“LIABILITIES”) WHICH ANY INDEMNITEE INCURS OR SUSTAINS, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OF THE ADMINISTRATIVE AGENT HEREUNDER, THE ACTIONS OR OMISSIONS OF ANY INDEMNITEE IN CONNECTION WITH THIS AGREEMENT, THE ESCROWED SHARES AND/OR THE DISPOSITION PROCEEDS HELD BY THE ADMINISTRATIVE AGENT HEREUNDER OR ANY INCOME EARNED THEREFROM INCLUDING, WITHOUT LIMITATION, LIABILITIES WHICH ARISE IN WHOLE OR IN PART FROM THE NEGLIGENCE, WHETHER SOLE OR CONCURRENT ON THE PART OF ANY INDEMNITEE BUT EXPRESSLY EXCLUDING THEREFROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SUCH INDEMNITEE. THE FOREGOING INDEMNITY SHALL SURVIVE SATISFACTION OF THE OBLIGATIONS AND TERMINATION OF THIS AGREEMENT.
Appears in 1 contract
Samples: Escrow and Security Agreement (Asbury Automotive Group Inc)
Terms of Escrow. Except (a) The parties hereby appoint the Administrative Agent as Administrative Agent in accordance with the case terms and conditions set forth herein, and the Administrative Agent hereby accepts such appointment as escrow agent.
(b) The Administrative Agent shall disburse all or any part of the willful misconduct Escrowed Shares as follows: any time the Administrative Agent receives (i) a written notification executed by a Grantor (or gross negligence such Grantor’s successor interest to the Escrowed Shares) advising the Administrative Agent of a proposed Disposition, (ii) (subject to Section 4.04(a)) all Disposition Proceeds (as herein defined) paid or payable to Grantors in respect of such Escrowed Shares, and (iii) if other than cash, duly executed instruments of assignment and delivery, the Administrative Agent shall immediately release such portion of the Escrow AgentEscrowed Shares, the following provisions shall apply:
6.1 The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it subject to be taken or omitted, in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel clause (including counsel chosen by the Escrow Agentf), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as is specified in such written notice to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of the this Escrow Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior Persons specified in such written consent theretonotice.
6.2 (c) The Escrow Administrative Agent shall not be responsible for the sufficiencysufficiency or accuracy of the form of, accuracy, form, or the execution, validity, value or genuineness of of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Administrative Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority authority, or rights of the persons Persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions hereofor this Agreement.
6.3 (i) The Escrow Administrative Agent shall have the right no duties or responsibilities other than those expressly set forth herein and, except as expressly set forth herein, shall have no duty to assumeenforce any obligation of any Person, in the absence to make any payment or delivery of written notice Disposition Proceeds, or to the contrary from the proper person direct or personscause any payment or delivery thereof, that a fact or an event to direct or cause any payment or delivery thereof to be made, or to enforce any obligation of any Person to perform any other act. The Administrative Agent shall be under no liability to any Person by reason of which an action would any failure on the part of any other Person to perform such Person’s obligations under any agreement involving or might be taken relating in any way to the Escrowed Shares or the Disposition thereof by the Escrow Grantors.
(ii) The Administrative Agent does in its role as escrow agent shall not exist be liable to the Grantors or has not occurred, without incurring liability to any other Person for any action taken or omitted, omitted by it in good faith and in the exercise of its own best judgment. The Administrative Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Administrative Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but as to the acceptability and reliability of any information therein contained) which is believed by the Administrative Agent to be genuine and to be signed or presented by the proper Person or Persons.
(e) The Grantors shall pay all income, withholding and any other taxes imposed on or measured by income which are attributable to income from the Escrowed Shares and the Disposition Proceeds for the time all or any part thereof are held in escrow hereunder, and shall file all tax and information returns applicable thereto. To the extent that the Administrative Agent becomes liable for the payment of taxes, including withholding taxes, in reliance upon respect of income derived from the Escrowed Shares and Disposition Proceeds, the Administrative Agent may but shall not be obligated to pay such assumption.
6.4 Following the receipt taxes. The Administrative Agent may withhold or offset from any amount payable by the Escrow Administrative Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if such notice shall relate to the other parties hereto, notify Grantors such parties thereof in writing; but amount as the failure by the Escrow Administrative Agent to give such notice shall not relieve any party from any liability which such party may have to the Escrow Agent hereunder. In the event of the receipt of such notice, the Escrow Agent, determines in its sole discretion, may (i) commence an action in discretion to be sufficient to provide for the nature payment of interpleader in an appropriate court to determine ownership or disposition of such taxes; alternately any share certificates representing Shares in such amount paid by the possession of Escrow Agent; (ii) deposit any share certificates representing Shares in the possession of Escrow Administrative Agent with the clerk of any appropriate court; or (iii) retain any share certificates representing Shares in the possession of Escrow Agent pending receipt of (a) consistent written instructions from each of Skyway, Dupont, and shall become a duly authorized representative acting on behalf of all part of the Parties involvedObligations. In addition, as to the disposition thereof or (b) a final, non-appealable order of a court having jurisdiction over all of the Parties directing to whom and under what circumstances any share certificates representing Shares and/or the aircraft title and FAA certificate in the possession of Escrow Agent are to be delivered.
6.5 The Escrow Agent shall be entitled to reimbursement from Skyway and Dupont, jointly and severally, for all expenses paid or incurred by it in the administration of its duties hereunder.
6.6 The Escrow Administrative Agent shall be indemnified and held harmless by Skyway and Dupont, jointly and severally, the Grantors from and against any liability for such taxes and all liabilities, losses, costs and expenses, including, without limitation, for any penalties or interest in respect of taxes on such investment income or payments in the manner provided in subparagraph (ak) reasonable attorneys' fees and disbursements and (b) usual and customary expenses involved in discovery proceedings and testimony, in connection with any claim, action, suit or other proceeding which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, or the Shares. In addition, the Escrow Agent shall be entitled to receive from Skyway and Dupont jointly and severally, fees (in amounts calculated at the Escrow Agent's customary rates) for time devoted to matters arising out of or related to its services hereunder, including, without limitation, in connection with any such claim, action, suit or other proceedingbelow.
6.7 From time to time on and after the date hereof, the Parties other than the Escrow (f) The Administrative Agent shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts is acting as the Escrow Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Escrow Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
6.8 The Escrow Agent may resign at any time and be discharged from its duties as the an escrow agent hereunder by its giving the other parties hereto at least thirty (30) days prior written notice thereof in accordance with the terms hereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the other Parties, jointly, any share certificates representing Shares in the possession of Escrow Agent upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new agent is so appointed within the sixty (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit any share certificates representing Shares in the possession of Escrow Agent with the Circuit Court for Pinellas County, Florida.
6.9 The Escrow Agent shall resign and be discharged from its duties as the escrow agent hereunder if so requested in writing at any time by the other Parties, jointly; provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided in Section 6.8 hereof.
6.10 Following resignation and/or discharge of the Escrow Agent, the provisions of this Section 6 shall nonetheless continue to be applicable with respect to the Escrow AgentEscrowed Shares and related Restricted Disposition Proceeds (as defined in Section 2.01 below). If any dispute arises as to whether the Administrative Agent is obligated to deliver the Escrowed Shares or as to whom the Escrowed Shares are to be delivered, the Administrative Agent shall not be required to make any delivery, but in such event the Administrative Agent may hold the Escrowed Shares until receipt by the Administrative Agent of the Disposition Proceeds and (i) instructions in writing, signed by all parties which have, or claim to have, an interest in the Escrowed Shares, directing the disposition of the Escrowed Shares, or (ii) in the absence of such writing, a final judgment from a court of competent jurisdiction or final binding arbitration award providing for the disposition of the Escrowed Shares.
Appears in 1 contract
