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Common use of The Escrow Agent Clause in Contracts

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.

Appears in 3 contracts

Samples: Escrow Agreement (Doranetti Music Inc), Escrow Agreement (Doranetti Music Inc), Escrow Agreement (Doranetti Music Inc)

The Escrow Agent. In exercising the rights(a) The duties, duties responsibilities and obligations prescribed or confirmed by this Agreement, of the Escrow Agent will act honestly shall be limited to those expressly set forth herein and in good faith and will exercise that degree of careno duties, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and responsibilities or obligations shall be inferred or implied against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for subject to, nor required to comply with, any other agreement to which the Company is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Company or an entity acting or failing to act on the advice of counselits behalf. The Escrow Agent will shall not be bound in required to expend or risk any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and own funds or otherwise incur any liability, financial or otherwise, in the only duty, liability and responsibility performance of any of its duties hereunder. (b) The Escrow Property shall be held by the Escrow Agent will be to hold either directly or through the Subscription Proceeds as herein directed Federal Reserve/Treasury Book-Entry System for United States and to pay federal agency securities (the “Book-Entry System”), The Depository Trust Company, a clearing agency registered with the Securities and deliver the same to such persons and Exchange Commission (“DTC”), or through any other such conditions as are herein set forthclearing agency or similar system (a “Clearing Agency”). The Escrow Agent will shall have no responsibility and shall not be required liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rates changes, or similar matters relating to pass upon securities held at DTC or with any Clearing Agency unless the sufficiency of any Escrow Agent shall have received actual and timely notice of the Subscription Proceeds same, nor shall the Escrow Agent have any responsibility or liability for the actions or omissions to ascertain whether or not act of the person or persons who have executedBook-Entry System, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents DTC or any of them, or that they are the same persons named therein or otherwise to pass upon Clearing Agency. (c) If at any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as time the Escrow Agent is concerned that the said documents are deposited served with it as herein specified by the parties executing this Agreement with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Agent. In no event will Property (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow AgentProperty), the Escrow Agent may, is authorized to comply therewith in any manner it or legal counsel of its sole discretion, obey own choosing deems appropriate; and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If if the Escrow Agent obeys and complies with any such writs, judicial or administrative order, judgment judgment, decree, writ or decrees it will other form of judicial or administrative process, the Escrow Agent shall not be liable to any of the parties hereto or to any other personperson or entity even though such order, firm judgment, decree, writ or corporation process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. (d) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Company or any entity acting on behalf of the Company, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Property, or any loss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Escrow Property, valued as of the date of deposit, but only to the extent of direct money damages. (e) The Escrow Agent may consult with legal counsel of its own choosing at the expense of the Company as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. If such expenses are to be billed to the Company, the Company will be informed of such expenses before they are incurred; provided, however, that failure to provide such notice will not affect the Company’s payment obligations hereunder. (f) The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility). (g) The Escrow Agent shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (h) The Escrow Agent shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such compliancedocument, notwithstanding security or endorsement. The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. (i) The Escrow Agent shall not be under any duty to give the Escrow Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest. (j) At any time the Escrow Agent may request an instruction in writing in English from the Company and may, at its own option, include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that such writsthe specified date shall be at least three (3) business days after the Company receives the Escrow Agent’s request for instructions and its proposed course of action, ordersand provided further that, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedprior to so acting, the Escrow Agent has not received the written instructions requested. (k) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or is not in the form the Company sent or intended to send (whether due to fraud, distortion or otherwise). The Company shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and directed to disregard expenses) it may incur with its acting in accordance with any such communication. (l) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company which eliminates such ambiguity or uncertainty. (m) In the event of any dispute between or conflicting claims among the Company and any other person or entity with respect to any Escrow Property, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all notices claims, demands or instructions with respect to such Escrow Property so long as such dispute or conflict shall continue, and warnings which may the Escrow Agent shall not be given or become liable in any way to it by any of the parties hereto Company or by any other personperson for failure or refusal to comply with such conflicting claims, firmdemands or instructions. The Escrow Agent shall be entitled to refuse to act until, association in its sole discretion, either (i) such conflicting or corporation. It will, however, obey the adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of that the parties hereto or to any other person, firm, association or corporation, even if thereafter any time for appeal from such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties heretohas expired without an appeal having been filed with such court. The Escrow Agent may resign as shall act on such court order and legal opinions without further question. The Escrow Agent by giving not less then ten may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (10including reasonable attorneys’ fees and expenses) days' written notice thereof to each incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Company. (n) The Escrow Agent shall have no responsibility for the contents of any writing of the Purchaser arbitrators or any third party contemplated herein as a means to resolve disputes and may conclusively rely without any liability upon the Companycontents thereof. (o) The Escrow Agent does not have any interest in the Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Purchaser and the Company may terminate shall pay or reimburse the Escrow Agent by giving upon request for any transfer taxes or other taxes relating to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company will be effective and provide the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder with appropriate W-9 forms for tax identification number certifications, or on such other date as the Escrow Agent, the Purchaser and the Company may agree uponW-8 forms for non resident alien certifications. All indemnities granted to the Escrow Agent will This paragraph shall survive the notwithstanding any termination of this Escrow Agreement or the resignation or termination removal of the Escrow Agent. Notwithstanding anything herein . (p) The Escrow Agent shall provide to the contraryCompany weekly statements identifying transactions, transfers or holdings of Escrow Property and each such statement shall be deemed to be correct and final upon receipt thereof by the Company unless the Escrow Agent may act upon any written instructions given is notified in writing, by the Company and the Purchaser jointly. Notwithstanding anything Company, to the contrary contained herein, in within thirty (30) business days of the event date of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentstatement.

Appears in 3 contracts

Samples: Subscription Escrow Agreement, Subscription Escrow Agreement (Paladin Realty Income Properties Inc), Subscription Escrow Agreement (Paladin Realty Income Properties Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, To induce the Escrow Agent will to act honestly hereunder, it is further agreed by the Buyer and in good faith and will exercise that the Seller that: (a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care, diligence care than it gives its own similar property and skill that a reasonably prudent person would exercise shall not be required to invest any Escrowed Property held hereunder except as directed in comparable circumstancesthis Agreement. The Purchaser and Uninvested funds held hereunder shall not earn or accrue interest. (b) This Agreement expressly sets forth all the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason duties of the Escrow Agent's compliance in good faith Agent with the terms hereofrespect to any and all matters pertinent hereto. In case proceedings should hereafter No implied duties or obligations shall be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 read into this Agreement against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for acting or failing to act on bound by the advice provisions of counsel. any agreement among the other parties hereto except this Agreement. (c) The Escrow Agent will shall not be bound in any way by any contract between the parties hereto whether liable, except for its own gross negligence or not it has notice thereof willful misconduct and, except with respect to claims based upon such gross negligence or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as willful misconduct that are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by successfully asserted against the Escrow Agent, the Escrow Agent mayBuyer and the Seller shall, in its sole discretionseverally and not jointly, obey indemnify and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If hold harmless the Escrow Agent obeys (and complies any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with any such writs, order, judgment or decrees it will not be liable to any of this Agreement. Without limiting the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedforegoing, the Escrow Agent is authorized and directed to disregard shall in no event be liable in connection with its sole discretion investment or reinvestment of any and all notices and warnings which may be given to cash held by it by hereunder in good faith, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the parties hereto Escrowed Property or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree loss of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof interest incident to any of the parties hereto or to such delays. This Section 5(c) shall survive notwithstanding any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. (d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Notwithstanding anything herein The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (e) The Escrow Agent may act pursuant to the contraryadvice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice. (f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent. (g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it. (h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. (i) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto. (j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof. (k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent may act upon any written instructions given shall be entitled to retain the Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question. (l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder. (m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. (n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow AgentFederal Reserve Book Entry System.

Appears in 3 contracts

Samples: Asset Sale and Purchase Agreement (Daisytek International Corporation /De/), Stock Purchase Agreement (Daisytek International Corporation /De/), Asset Sale and Purchase Agreement (Daisytek International Corporation /De/)

The Escrow Agent. In exercising Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the following terms and conditions, which the parties to this Agreement hereby agree shall govern and control the rights, duties and immunities of the Escrow Agent: (a) The duties and obligations prescribed or confirmed by this Agreement, of the Escrow Agent will act honestly and in good faith and will exercise that degree shall be determined solely by the express provisions of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser this Escrow Agreement and the Company Escrow Agent shall not be bound by the provisions of any agreement between Seller and Purchasers or any third party, except that the Escrow Agent is charged with knowledge of the Escrow Documents; (b) This Escrow Agreement sets forth the duties and obligations of the Escrow Agent with respect to all matters pertinent thereto and such duties and obligations will terminate as set forth herein; (c) The Escrow Agent shall not be responsible for any failure or inability of the Seller or the Purchasers or of anyone else, to deliver the Escrow Fund to the Escrow Agent or otherwise to honor any of the provisions of this Escrow Agreement or the provisions of any of the other Purchaser Documents; (d) The out-of-pocket fees and expenses of the Escrow Agent in administering this Escrow Agreement shall be borne by the Seller. Seller and Purchasers, jointly and severally covenant and severally, hereby agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow AgentAgent and each of its partners, its successorsemployees and agents (the "Indemnified Parties") for, and assignsto hold each of the Indemnified Parties harmless against, from and against all any loss, costsliability or expense, charges, suits, demands, claims, damages including but not limited to reasonable attorneys' fees and expenses which arising out of or in connection with its acceptance of, or the performance of its duties and obligations under this Escrow Agreement (including, but not limited to, any action taken or omitted by the Escrow Agent, its successors Agent in connection with this Escrow Agreement or assigns may at any time action allegedly so taken or times hereafter bear, sustain, suffer or be put unto for omitted) or by reason of, or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of as a result of, the Escrow Agent's compliance with the joint instructions of Seller and the Purchasers ; provided, however, that the Escrow Agent shall not be entitled to indemnification with respect to any loss, liability or expense which arises out of gross negligence or willful misconduct on the part of the Escrow Agent. (e) The Escrow Agent shall be fully protected in acting on and relying upon any written notice, direction, request, waiver, consent, receipt or other paper or document which the Escrow Agent in good faith with believes to be genuine and to have been signed or presented by the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action proper party or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. parties; (f) The Escrow Agent will have no responsibility shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in respect of loss of the Subscription Proceeds good faith or for anything which it may do or refrain from doing in connection herewith, except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. its own willful misconduct or gross negligence; and (g) The Escrow Agent may act on seek the advice of legal counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility (which may include a partner of the Escrow Agent will be Agent) in the event of any dispute or question as to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency construction of any of the Subscription Proceeds provisions of this Escrow Agreement or to ascertain whether its duties hereunder, and it shall incur no liability and shall be fully protected in respect of any action taken, omitted or not suffered by it in good faith in accordance with the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement written opinion of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the counsel. (h) The Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiencyacting, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding understand that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold act, as counsel to the Subscription Proceeds until Purchasers in connection with the lawful determination Purchaser Documents (including this Agreement) and the transactions contemplated thereunder or hereunder, whether or not the Escrow Fund is being held by the Escrow Agent or has been delivered to an appropriate court in the State of the issue between the parties hereto. New York. (i) The Escrow Agent may resign as Escrow Agent by giving does not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser have and the Company may terminate will not have any interest in the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective Fund but is serving only as escrow holder and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agenthas only possession thereof.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Patel Sanjay H), Escrow Agreement (Patel Sanjay H)

The Escrow Agent. In exercising the rights(a) The duties, duties responsibilities and obligations prescribed or confirmed by this Agreement, the of Escrow Agent will act honestly shall be limited to those expressly set forth herein and in good faith and will exercise that degree of careno duties, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and responsibilities or obligations shall be inferred or implied against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for subject to, nor required to comply with, any other agreement to which the Escrow Company or the Trustee is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Escrow Company or the Trustee or an entity acting or failing to act on the advice of counselits behalf. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will shall not be required to pass upon expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the sufficiency performance of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or its duties hereunder. (b) If at any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as time the Escrow Agent is concerned that the said documents are deposited served with it as herein specified by the parties executing this Agreement with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Agent. In no event will Property (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow AgentProperty), the Escrow Agent may, is authorized to comply therewith in any manner it or legal counsel of its sole discretion, obey own choosing deems appropriate; and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If if the Escrow Agent obeys and complies with any such writs, judicial or administrative order, judgment judgment, decree, writ or decrees it will other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto or to any other personperson or entity even though such order, firm judgment, decree, writ or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees process may be subsequently reversedmodified or vacated or otherwise determined to have been without legal force or effect. (c) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of bad faith, modifiedgross negligence or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any instruction, annullednotice, set aside demand, certificate or vacated. Except document from the Escrow Company or Trustee or any entity acting on behalf of the Escrow Company and the Trustee, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Property, or any loss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Escrow Property, valued as herein otherwise providedof the date of deposit, but only to the extent of direct money damages. (d) If any fees, reasonable out-of-pocket expenses or costs incurred by, or any obligations owed to, the Escrow Agent is authorized or its counsel hereunder are not paid within 10 Business Days after such expenses or costs are due, the Escrow Agent may reimburse itself therefor from the Escrow Property and directed to disregard may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder. (e) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company, as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. (f) The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility). (g) The Escrow Agent shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (h) The Escrow Agent shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or endorsement. The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. (i) The Escrow Agent shall not be under any duty to give the Escrow Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest. (j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent bad faith, gross negligence or willful misconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Escrow Company or the Trustee or is not in the form the Escrow Company and the Trustee sent or intended to send (whether due to fraud, distortion or otherwise). The Escrow Company and the Trustee shall indemnify the Escrow Agent against any loss, liability, claim or reasonable out-of-pocket expense (including reasonable out-of-pocket legal fees and expenses) it may incur with its acting in accordance with any such communication. (k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Escrow Company or the Trustee, which eliminates such ambiguity or uncertainty. (l) In the event of any dispute between or conflicting claims among the Escrow Company, the Company and the Trustee and any other person or entity with respect to any Escrow Property, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all notices claims, demands or instructions with respect to such Escrow Property so long as such dispute or conflict shall continue, and warnings which may the Escrow Agent shall not be given or become liable in any way to it the Escrow Company, the Company or the Trustee for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until, in its sole discretion, either (i) such conflicting or adverse claims or demands shall have been determined by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of that the parties hereto or to any other person, firm, association or corporation, even if thereafter any time for appeal from such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties heretohas expired without an appeal having been filed with such court. The Escrow Agent may resign as shall act on such court order and legal opinions without further question. The Escrow Agent by giving not less then ten may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The reasonable costs and reasonable out-of-pocket expenses (10including attorneys’ fees and expenses) days' written notice thereof to each incurred in connection with such proceeding shall be paid by, and shall be deemed a joint and several obligation of, the Escrow Company and the Company. (m) The Escrow Agent shall have no responsibility for the contents of any writing of the Purchaser arbitrators or any third party contemplated herein as a means to resolve disputes and may conclusively rely without any liability upon the Companycontents thereof. (n) The Escrow Agent does not have any interest in the Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Purchaser Escrow Company and the Company may terminate shall pay or reimburse the Escrow Agent by giving upon request for any transfer taxes or other taxes relating to the Escrow Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent a notice from any amounts that it is obligated to pay in the way of termination executed by each of them not less than ten (10) days prior to the proposed date of terminationsuch taxes. The resignation or termination Escrow Company shall be treated as the owner of the Escrow Agent Property for U.S. federal income tax purposes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Escrow Company will be effective and provide the Escrow Agent will cease to be bound by this Agreement on the date with appropriate W-9 forms for tax identification number certifications. It is understood that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent shall only be responsible for income reporting with respect to income earned on the Escrow Property and will not be responsible for any other reporting. This paragraph shall survive the notwithstanding any termination of this Agreement or the resignation or termination removal of the Escrow Agent. Notwithstanding anything herein . (o) The Escrow Agent shall provide to the contraryEscrow Company and the Company monthly statements identifying transactions, transfers or holdings of Escrow Property and each such statement shall be deemed to be correct and final upon receipt thereof by the Escrow Agent may act upon any written instructions given by Company, the Company and the Purchaser jointly. Notwithstanding anything Trustee unless the Escrow Agent is notified in writing, by the Escrow Company, the Company and the Trustee, to the contrary contained hereinwithin thirty (30) Business Days of the date of such statement. The Escrow Company and Company acknowledge that regulations of the Comptroller of the Currency grant the parties the right to receive brokerage confirmations of the security transactions as they occur. The Escrow Company and Company specifically waive such notification to the extent permitted by law and will receive periodic cash transaction statements which will detail all investment transactions. Except as otherwise provided hereunder or agreed in writing among the parties hereto, Escrow Company shall retain the authority to institute, participate and join in the event any plan of any dispute arising between the Purchaser and the Company reorganization, readjustment, merger or between any other persons or between any of them consolidation with respect to the Subscription Agreementissuer of any securities held hereunder, this Agreement and, in general, to exercise each and every other power or any matters arising thereto, or right with respect to the Subscription Proceedseach such asset or investment as individuals generally have and enjoy with respect to their own assets and investment, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge including power to the Escrow Agentvote upon any securities.

Appears in 2 contracts

Samples: Escrow Agreement, Escrow Agreement (Cooper-Standard Holdings Inc.)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Fund as directed in writing jointly signed by the Investors and the Shareholders. The reasonable fees and expenses of the Escrow Agent, including the fees and disbursements of its counsel, if any, in connection with its performance of this Agreement shall be paid by the Company. The Escrow Agent shall not be liable for, and the Shareholders and the Investors shall jointly and severally indemnify the Escrow Agent against, any losses or claims arising out of any action taken or omitted in good faith hereunder and upon the advice of counsel, except for its own gross negligence or willful misconduct. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Agreement. The Escrow Agent may act upon any written instructions given instrument or signature reasonably believed by the Company it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Escrow Agreement and the Purchaser jointly. Notwithstanding anything to the contrary contained hereinWarrants and applicable laws, in the event of any dispute arising between the Purchaser and the Company Escrow Agent is not charged with knowledge of, or between any duties or responsibilities in connection with, any other persons document or between any of them with respect to agreement, including the Subscription Agreement, this Purchase Agreement or any matters arising thereto, or with respect agreements executed in connection therewith. The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the Subscription Proceedsparties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty (30) Business Days prior to the date specified for such resignation to take effect. If the parties hereto do not designate a successor escrow agent within said thirty (30) Business Days, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, all cash and other payments and all other property then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by the parties hereto. In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in any court of competent jurisdiction and request that such court determine such respective rights of the parties with respect to this Escrow Agreement, and upon doing so, the Escrow Agent shall be released from any obligations or liability to either party as a consequence of any such claims or demands. The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be under a duty to examine into or pass upon the validity, binding effect, execution or sufficiency of this Escrow Agreement or of any agreement amendatory or supplemental hereto. The Company, the Shareholders and the Investors acknowledge and agree that the Escrow Agent (i) shall not be responsible for any of the agreements referred to herein but shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement; (ii) shall not be obligated to take any legal or other action hereunder which might in its sole discretion deliver judgment involve any expense or liability unless it shall have been furnished with acceptable indemnification; (iii) may rely on and interplead shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by the Subscription Proceeds into court proper person, and shall have no responsibility for determining the accuracy thereof, and (iv) may consult counsel satisfactory to it, including house counsel, and the opinion of such delivery counsel shall be full and interpleading will complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion of such counsel. Neither the Escrow Agent nor any of its directors, officers or employees shall be an effective discharge liable to anyone for any action taken or omitted to be taken by it or any of its directors, officers or employees hereunder except in the case of gross negligence or willful misconduct. The Company, the Shareholders and the Investors, jointly and severally, covenant and agree to indemnify the Escrow Agent and hold it harmless without limitations from and against any loss, liability or expense of any nature incurred by the Escrow Agent arising out of or in connection with this Agreement or with the administration of its duties hereunder, including but not limited to legal fees and other costs and expenses of defending or preparing to defend against any claim or liability in the premises, unless such loss, liability or expense shall be caused by the Escrow Agent's willful misconduct or gross negligence. In no event shall the Escrow Agent be liable for indirect, special or consequential damages. The Company, the Shareholders and the Investors, jointly and severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to payments from the Escrow Fund under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent on any such payment or other activities under this Agreement. The Company, the Shareholders and the Investors undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. The Company, the Shareholders and the Investors, jointly and severally, agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees), interest and penalties. The Company agrees to pay or reimburse the Escrow Agent for any legal fees incurred in connection with the preparation of this Agreement and to pay the Escrow Agent's reasonable compensation for its normal services hereunder in accordance with the fee schedule set forth in the letter attached hereto as EXHIBIT E. The Escrow Agent shall be entitled to reimbursement on demand for all reasonable expenses incurred in connection with the administration of the escrow created hereby which are in excess of its compensation for normal services hereunder, including without limitation, payment of any legal fees incurred by the Escrow Agent in connection with resolutions of any claim by any party hereunder.

Appears in 2 contracts

Samples: Escrow Agreement (Outsource International Inc), Securities Purchase Agreement (Outsource International Inc)

The Escrow Agent. In exercising the rights, duties and 4.1 The obligations prescribed or confirmed by this Agreement, of the Escrow Agent will act honestly are limited to those specifically provided in this Agreement and in good faith no other, and will exercise that degree of carethe Escrow Agent shall have no liability under, diligence and skill that a reasonably prudent person would exercise in comparable circumstancesno duty to inquire into the terms and provisions of, any agreement between the parties hereto. The Purchaser Escrow Agent is acting hereunder as an accommodation to the parties hereto. The duties of the Escrow Agent are purely ministerial in nature, and it shall not incur any liability whatsoever, except for its willful misconduct or gross negligence. The Escrow Agent may consult with counsel of its choice, and shall not be liable for following the advice of such counsel. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. 4.2 The Holders and the Company Pledgor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep hold harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages damages, fees and expenses (including reasonable attorney's fees and expenses) (all of the foregoing, "Losses") which the Escrow Agent, its successors or assigns may at any time or of times hereafter bear, sustain, suffer or be put unto for or by reason arising out of or on account in connection with the performance of its acting pursuant to obligations in accordance with the provisions of this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. The foregoing indemnities in this Section 4.2 shall survive the resignation or substitution of the Escrow Agent and the termination of this Agreement. The Pledgor and Holders shall pay any Losses of the Escrow Agent as incurred by the Escrow Agent. 4.3 In case proceedings should hereafter be taken in any court respecting the Subscription ProceedsSecurities, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause Section 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. . 4.4 [Intentionally Omitted.] 4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds Securities as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds Securities or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. . 4.6 The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other item deposited with it or of any signature thereon or for the identity, authority or right of any person executing or depositing the same and shall not have any liability for acting in accordance with any written instructions or certificates given to it hereunder signed by the proper parties. 4.7 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. . 4.8 In the event that the Subscription Proceeds Securities are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the . 4.9 The Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements judgments or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. . 4.10 If protest is made to any action, contemplated by the Escrow Agent receives any written instructions contrary to the instructions contained in under this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds Securities until the lawful determination right to the documents is legally determined by a court of competent jurisdiction or otherwise. 4.11 If written notice of protest is made by any of the issue between Holders or the parties hereto. The Pledgor to the Escrow Agent may resign as to any action contemplated by the Escrow Agent under this Agreement, and such notice sets out reasons for such protest the Escrow Agent will be entitled to continue to hold the Securities until the right to the documents is legally determined by giving not less then a court of competent jurisdiction or otherwise. 4.12 This Agreement may be terminated at any time by and upon the receipt by the Escrow Agent of ten (10) days' written notice thereof to each of termination executed by the Purchaser or the Company. The Purchaser Holders and the Company may terminate Pledgor, directing the distribution of all property then held by the Escrow Agent under and pursuant to this Agreement. The Escrow Agent shall have the sole and absolute right to resign in accordance with the provisions of this Section 4.12. The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving at least ten (10) days' prior written notice of such resignation to the Holders and Pledgor and specifying a date upon which such resignation shall take effect. Upon receipt of such notice, a successor escrow agent shall jointly be appointed by the Holders and Pledgor, such successor escrow agent to become the Escrow Agent hereunder on the resignation date specified in such notice. If no successor Escrow Agent is appointed prior to the date specified, the Escrow Agent shall have the right at any time to deposit the Securities with a court of competent jurisdiction, as specified in Section 6.5 hereof, and the Escrow Agent shall have no further obligation with respect thereto. The Holders and Pledgor, acting jointly, may at any time substitute a new escrow agent by giving ten (10) days' notice thereof to the Escrow Agent then acting and paying all fees and expenses of such Escrow Agent. In the alternative, in the event of a notice of termination executed by each of them not less than ten (10) days prior dispute in relation to the proposed date release of termination. The resignation or termination of the Securities, the Escrow Agent will be effective may resign fifteen (15) days after giving written notice of such resignation to the parties hereto and depositing the Securities with an appropriate court, as specified in Section 6.5 hereof, and the Escrow Agent will cease to be bound by shall have no further obligation with respect hereto or under this Agreement, in any manner. This Agreement on the date that is ten (10) days after the date of receipt shall automatically terminate if and when all of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to Securities shall have been distributed by the Escrow Agent will survive in accordance with the termination terms of this Agreement or the resignation or termination of the Escrow Agent. Agreement. 4.13 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company Pledgor and all of the Purchaser Holders jointly. 4.14 If any dispute should arise with respect to the ownership or right of possession of the Securities, or should the Escrow Agent, in its sole judgement, receive conflicting instructions with respect to the instructions contained in this Agreement or to any distribution of the Securities, the Escrow Agent is authorized and directed to retain in its possession, without liability to anyone, all or any portion of the Securities until such dispute shall have been settled either by agreement of the parties concerned by filing of written directions signed by the Holders and Pledgor to the Escrow Agent or by a final decree, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between any of the Purchaser Holders and the Company Pledgor or between any other persons or between any of them with respect to the Subscription Pledge Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription ProceedsPledged Stock, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds Securities into court court, as specified in Section 6.5 hereof, and such delivery and interpleading will be an effective discharge to the Escrow Agent. 4.15 The Escrow Agent shall be promptly reimbursed, jointly and severally by the Holders and Pledgor, for reasonable expenses incurred by the Escrow Agent in the performance of services pursuant to this Agreement including, but not limited to, legal fees, including all fees and expenses incurred in connection with its resignation pursuant to Section 4.12. 4.16 [Intentionally omitted.] 4.17 The Holders and Pledgor shall each bear all of their own fees and expenses incurred by them in resolving any dispute arising under this Agreement. The Holders and Pledgor shall jointly and severally reimburse the Escrow Agent for any costs incurred by the Escrow Agent in connection with any dispute arising under this Agreement. The Holders and Pledgor shall jointly and severally reimburse the Escrow Agent for any costs incurred in the performance of its duties hereunder.

Appears in 2 contracts

Samples: Escrow Agreement (Merlin Software Technologies International Inc), Escrow Agreement (Merlin Software Technologies International Inc)

The Escrow Agent. In exercising the rights(a) The duties, duties responsibilities and obligations prescribed or confirmed by this Agreement, the of Escrow Agent will act honestly shall be limited to those expressly set forth herein and in good faith and will exercise that degree of careno duties, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and responsibilities or obligations shall be inferred or implied against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for subject to, nor required to comply with, any other agreement to which the Purchaser or the Seller is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Purchaser or the Seller or an entity acting or failing to act on the advice of counselits behalf. The Escrow Agent will shall not be bound in required to expend or risk any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and own funds or otherwise incur any liability, financial or otherwise, in the only duty, liability and responsibility performance of any of its duties hereunder. (b) The Escrow Property shall be held by the Escrow Agent will be to hold either directly or through the Subscription Proceeds as herein directed Federal Reserve/Treasury Book-Entry System for United States and to pay federal agency securities (the "Book-Entry System"), The Depository Trust Company, a clearing agency registered with the Securities and deliver the same to such persons and Exchange Commission ("DTC"), or through any other such conditions as are herein set forthclearing agency or similar system (a "Clearing Agency"). The Escrow Agent will shall have no responsibility and shall not be required liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rates changes, or similar matters relating to pass upon securities held at DTC or with any Clearing Agency unless the sufficiency of any Escrow Agent shall have received actual and timely notice of the Subscription Proceeds same, nor shall the Escrow Agent have any responsibility or liability for the actions or omissions to ascertain whether or not act of the person or persons who have executedBook-Entry System, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents DTC or any of them, or that they are the same persons named therein or otherwise to pass upon Clearing Agency. (c) If at any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as time the Escrow Agent is concerned that the said documents are deposited served with it as herein specified by the parties executing this Agreement with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Agent. In no event will Property (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow AgentProperty), the Escrow Agent may, is authorized to comply therewith in any manner it or legal counsel of its sole discretion, obey own choosing deems appropriate; and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If if the Escrow Agent obeys and complies with any such writs, judicial or administrative order, judgment judgment, decree, writ or decrees it will other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto or to any other personperson or entity even though such order, firm judgment, decree, writ or corporation process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. (d) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Purchaser and the Seller or any entity acting on behalf of the Purchaser or the Seller, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Property, or any loss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Escrow Property, valued as of the date of deposit, but only to the extent of direct money damages. (e) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Purchaser and the Seller, as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. (f) The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility). (g) The Escrow Agent shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (h) The Escrow Agent shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such compliancedocument, notwithstanding security or endorsement. The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. (i) The Escrow Agent shall not be under any duty to give the Escrow Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest. (j) At any time the Escrow Agent may request an instruction in writing in English from the Purchaser and the Seller and may, at its own option, include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that such writsthe specified date shall be at least three (3) business days after the Purchaser and the Seller receives the Escrow Agent's request for instructions and its proposed course of action, ordersand provided further that, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedprior to so acting, the Escrow Agent has not received the written instructions requested. (k) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Purchaser or the Seller or is not in the form the Purchaser and directed the Seller sent or intended to disregard send (whether due to fraud, distortion or otherwise). The Purchaser and the Seller shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication. (l) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Purchaser and the Seller, which eliminates such ambiguity or uncertainty. (m) In the event of any dispute between or conflicting claims among the Purchaser and the Seller and any other person or entity with respect to any Escrow Property, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all notices claims, demands or instructions with respect to such Escrow Property so long as such dispute or conflict shall continue, and warnings which may the Escrow Agent shall not be given or become liable in any way to it the Purchaser and the Seller for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until, in its sole discretion, either (i) such conflicting or adverse claims or demands shall have been determined by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of that the parties hereto or to any other person, firm, association or corporation, even if thereafter any time for appeal from such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties heretohas expired without an appeal having been filed with such court. The Escrow Agent may resign as shall act on such court order and legal opinions without further question. The Escrow Agent by giving not less then ten may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (10including reasonable attorneys' fees and expenses) days' written notice thereof to each incurred in connection with such proceeding shall be paid by, and shall be deemed a joint and several obligation of, the Purchaser and the Seller. (n) The Escrow Agent shall have no responsibility for the contents of any writing of the Purchaser arbitrators or any third party contemplated herein as a means to resolve disputes and may conclusively rely without any liability upon the Companycontents thereof. (o) The Escrow Agent does not have any interest in the Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Seller shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Purchaser and the Company may terminate Seller will provide the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of terminationwith appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will This paragraph shall survive the notwithstanding any termination of this Escrow Agreement or the resignation or termination removal of the Escrow Agent. Notwithstanding anything herein to the contrary, the . (p) The Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything shall provide to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company Seller monthly statements identifying transactions, transfers or between any other persons or between any holdings of them with respect Escrow Property and each such statement shall be deemed to be correct and final upon receipt thereof by the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to Purchaser and the Subscription Proceeds, Seller unless the Escrow Agent may is notified in its sole discretion deliver writing, by the Purchaser and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge Seller, to the Escrow Agentcontrary within thirty (30) business days of the date of such statement.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Thoratec Corp), Asset Purchase Agreement (Diametrics Medical Inc)

The Escrow Agent. In exercising the rights, duties and (a) The Escrow Agent hereby accepts its obligations prescribed or confirmed by under this Agreement, and represents that it has the Escrow Agent will act honestly power and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time legal authority to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to enter into this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit and perform its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingsobligations hereunder. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to further agrees that all property held by the Escrow AgentAgent hereunder shall be identified as being held in connection with this Agreement. The Escrow Agent may act on agrees that its documents and records with respect to the advice of counsel but transactions contemplated hereby will not be responsible available for acting or failing examination by the Company and the Holder. (b) The Escrow Agent shall be entitled to act on receive from the advice of counselCompany reimbursement for any reasonable expenses incurred by it hereunder. The Escrow Agent will shall not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only dutyhave a lien upon, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of themother right whatsoever to payment from, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act held hereunder by the Escrow Agent, for or on account of such right to payment and reimbursement or otherwise. (c) The Escrow Agent shall not have any duties or responsibilities hereunder except as expressly set forth herein. The Escrow Agent shall have no investment responsibility with respect to funds or other property held hereunder and shall have no responsibility for ascertaining or taking any action with respect to calls, conversions, exchanges, maturities, tenders, or other matters relating to any property held by it hereunder, whether or not the Escrow Agent mayhas or is deemed to have knowledge or notice of such matters, in its sole discretionor taking any steps to preserve rights against any parties with respect to any properly held hereunder. (d) The Escrow Agent shall be entitled to rely upon any notice, obey and comply with all writscertificate, ordersaffidavit, judgments letter, document or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If other communication that the Escrow Agent obeys believes to be genuine and complies with any such writsto have been signed or sent by the proper party or parties, order, judgment and may rely on statements contained therein without further inquiry or decrees it will investigation. (e) The Escrow Agent shall not be liable for any action taken in accordance with the terms of this Agreement, including without limitation, any release of Escrow Documents held by it hereunder in accordance with Sections 1 and 3 of this Agreement. The Escrow Agent shall not be liable for any other action or failure to act under or in connection with this Agreement, except for its own willful misconduct. (f) In the event of any of disagreement between the parties hereto Company and the Holder, or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedresulting in an adverse claim to Escrow Documents held hereunder, the Escrow Agent is authorized shall be entitled at its option to refuse to comply with any such claim and directed shall not be liable for damages or interest to disregard in any such person or persons for its sole discretion any failure to comply with such adverse claims and all notices and warnings which may the Escrow Agent shall be given entitled to it by any continue to so refrain until: (i) The rights of the parties hereto or adverse claimants shall have been finally adjudicated by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any a court of competent jurisdiction, ; or (ii) All differences shall have been adjusted by agreement and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to shall have been notified thereof in a writing signed by all interested persons. In the instructions contained in this Agreementevent of such disagreement, the Escrow Agent in its discretion may continue to hold file a suit in interpleader for the Subscription Proceeds until purpose of having the lawful determination respective rights of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten claimants of such funds or other property adjudicated. (10g) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything contained herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising or disagreement between the Purchaser Company and the Company Holder regarding this Agreement or between any other persons or between any of them the funds or property held by the Escrow Agent hereunder, which dispute or disagreement is not settled or otherwise resolved within thirty (30) days after written notice of such dispute is delivered to the Escrow Agent, the Company may send written notice instructing the Escrow Agent to return the funds held by it hereunder to the Holder pending the resolution of such dispute or disagreement. The Escrow Agent shall have no further obligation or responsibility with respect to the Subscription Agreementreturn of any such funds or property under this Section. (h) The Company agrees to indemnify the Escrow Agent, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, and hold the Escrow Agent harmless, from and against any and all claims, costs, expenses, demands, judgments, losses, damages, and liabilities (including, without limitation, reasonable attorneys’ fees and expenses) arising out of or in connection with this Agreement, including without limitation any action brought by the Escrow Agent pursuant to Section 10(f) hereof, except such as may in its sole discretion deliver and interplead be caused by the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to willful misconduct of the Escrow Agent. (i) The Escrow Agent may at any time resign by giving prior written notice of such resignation to the Company and the Holder. The Escrow Agent shall not be discharged from its duties and obligations hereunder until a successor escrow agent shall have been designated by the Company and the Holder, and shall have executed and delivered an Escrow Agreement in substantially the form of this Agreement, and all property then held by the Escrow Agent hereunder shall have been delivered to such successor Escrow Agent.

Appears in 2 contracts

Samples: Securities Exchange Agreement (Cybra Corp), Securities Exchange Agreement (Cybra Corp)

The Escrow Agent. In exercising the rights, (a) The Escrow Agent shall have no duties or obligations hereunder except those specifically set forth herein and such duties and obligations prescribed or confirmed shall be determined solely by the express provisions of this Agreement. The Escrow Agent shall have no liability under and no duty to inquire as to the provisions of any agreement other than this Agreement. In connection with its duties hereunder, the Escrow Agent will act honestly shall be protected in acting or refraining from acting upon any written notice, request, consent, certificate, order, affidavit, letter, telegram or other document furnished to it hereunder and believed by it to be genuine and to have been signed or sent by the proper party or parties. In the administration of the Escrowed Certificates, the Escrow Agent may execute any of its powers and perform its duties hereunder directly or through agents or attorneys and may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for the performance of agents selected by it with reasonable care or for anything done, suffered or omitted in good faith and will exercise that degree by it in accordance with the advice or opinion of careany such counsel, diligence and skill that a reasonably prudent person would exercise in comparable circumstancesaccountants or other skilled persons. The Purchaser and Escrow Agent shall have no duty to solicit any payments that may be due it hereunder. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith unless a court of competent jurisdiction determines that the Company jointly and severally covenant and agree from time Escrow Agent’s gross negligence or willful misconduct was the primary cause of the loss to time and at all times hereafter well and truly an Escrow Party. The Escrow Agent shall not incur any liability for following the instructions set forth in this Agreement or written instructions given by an Escrow Party in accordance with this Agreement. (b) In the event the Escrow Agent shall be uncertain as to saveits duties or rights under this Agreement or shall receive any instruction, defend and keep harmless and fully indemnify claim or demand that, in the opinion of the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which is in conflict with the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account provisions of its acting pursuant to this Agreement or anything in (any manner relating thereto or by reason of the foregoing, an “Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription ProceedsAgent Dispute”), the Escrow Agent will not shall be obliged entitled to defend refrain from taking any action with respect to such Escrow Agent Dispute until it shall be directed otherwise by a final and nonappealable order of a court of competent jurisdiction or by an instrument signed by all of the Escrow Parties. In the event of any Escrow Agent Dispute, the Escrow Agent shall be entitled to petition a court of competent jurisdiction in the County of New York, State of New York to resolve such Escrow Agent Dispute, and each of the Escrow Parties consent to the jurisdiction of any such action or submit its rights court with respect to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of any such proceedings. Escrow Agent Dispute. (c) The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient reimbursed for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified reasonable fees and expenses, including without limitation those fees set forth on Schedule III hereto, reasonable counsel fees and disbursements, incurred by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in connection with the performance of its duties and obligations under this Agreement and reasonable courier fees incurred by the Escrow Agent in connection with any manner sufficient deliveries required to bring it to be made by the Escrow Agent in connection with the performance of its attentionduties and obligations under this Agreement. In The Acquiror shall be responsible for all such reasonable fees and expenses. The Acquiror shall be liable for the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery payment of all such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act fees and expenses incurred by the Escrow Agent, except for such fees and expenses incurred by the Escrow Agent may, in its sole discretion, obey and due to (i) the failure of an Escrow Party to comply with all writs, orders, judgments any of its obligations hereunder or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to (ii) the contrary. If requirement by an Escrow Party that the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any perform duties outside the scope of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, which fees and expenses set forth in the immediately preceding clauses (i) and (ii) shall be paid by the applicable Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. Party. (d) The Escrow Agent may resign as at any time by giving at least 30 days’ prior written notice to the Escrow Parties, which resignation shall become effective upon the acceptance of appointment by the successor Escrow Agent by giving as provided in this Section 6(d). The resigning Escrow Agent may appoint a successor Escrow Agent, reasonably acceptable to the Escrow Parties. If a successor Escrow Agent shall not have been appointed within 20 days after such notice of resignation, any of the Escrow Parties or the Escrow Agent, at the expense of the Escrow Parties, may apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Notwithstanding the foregoing, any successor Escrow Agent shall be a financial institution organized under the laws of the United States of America and having a combined capital and surplus of not less then ten (10) days' written notice thereof than US $100,000,000. Any successor Escrow Agent, however appointed, shall execute and deliver to the predecessor Escrow Agent, with a copy to each of the Purchaser or Escrow Parties, an instrument accepting such appointment, and thereupon such successor Escrow Agent shall, without further act, become fully vested with all the Company. The Purchaser rights, powers, obligations and duties of the Company may terminate predecessor Escrow Agent hereunder with the same effect as if originally named the Escrow Agent by giving to the herein. The Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior shall have the right to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective withhold an amount equal to any amount due and the Escrow Agent will cease owing to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser plus any reasonable costs and the Company may agree upon. All indemnities granted to expenses the Escrow Agent will survive reasonably believes may be incurred by the Escrow Agent in connection with termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Jaharis Mary), Stock Purchase Agreement (Kos Pharmaceuticals Inc)

The Escrow Agent. In exercising the rights, (a) The Escrow Agent shall have no duties or obligations hereunder except those specifically set forth herein and such duties and obligations prescribed or confirmed shall be determined solely by the express provisions of this Agreement. The Escrow Agent shall have no liability under and no duty to inquire as to the provisions of any agreement other than this Escrow Agreement. In connection with its duties hereunder, the Escrow Agent will act honestly shall be protected in acting or refraining from acting upon any written notice, request, consent, certificate, order, affidavit, letter, telegram or other document furnished to it hereunder and believed by it to be genuine and to have been signed or sent by the proper party or parties. In the administration of the Escrow Account, the Escrow Agent may execute any of its powers and perform its duties hereunder directly or through agents or attorneys and may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for the performance of agents selected by it with reasonable care or for anything done, suffered or omitted in good faith and will exercise that degree by it in accordance with the advice or opinion of careany such counsel, diligence and skill that a reasonably prudent person would exercise in comparable circumstancesaccountants or other skilled persons. The Purchaser and Escrow Agent shall have no duty to solicit any payments that may be due it hereunder. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith unless a court of competent jurisdiction determines that the Company jointly and severally covenant and agree from time Escrow Agent’s gross negligence or willful misconduct was the primary cause of the loss to time and at all times hereafter well and truly an Escrow Party. The Escrow Agent shall not incur any liability for following the instructions set forth in this Agreement or written instructions given by the Escrow Parties in accordance with this Agreement. (b) In the event the Escrow Agent shall be uncertain as to saveits duties or rights under this Agreement or shall receive any instruction, defend and keep harmless and fully indemnify claim or demand that, in the opinion of the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which is in conflict with the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account provisions of its acting pursuant to this Agreement or anything in (any manner relating thereto or by reason of the foregoing, an “Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription ProceedsAgent Dispute”), the Escrow Agent will not shall be obliged entitled to defend refrain from taking any action with respect to such Escrow Agent Dispute until it shall be directed otherwise by a final and nonappealable order of a court of competent jurisdiction or by an instrument signed by all of the Escrow Parties. In the event of any Escrow Agent Dispute, the Escrow Agent shall be entitled to petition a court of competent jurisdiction in the County of New York, State of New York to resolve such Escrow Agent Dispute, and each of the Escrow Parties consent to the jurisdiction of any such action or submit its rights court with respect to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of any such proceedings. Escrow Agent Dispute. (c) The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient reimbursed for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified reasonable fees and expenses, including without limitation those fees set forth on Schedule IV hereto, reasonable counsel fees and disbursements, incurred by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in connection with the performance of its duties and obligations under this Agreement and reasonable courier fees incurred by the Escrow Agent in connection with any manner sufficient deliveries required to bring it to be made by the Escrow Agent in connection with the performance of its attentionduties and obligations under this Agreement. In The Company shall be responsible for all such reasonable fees and expenses. The Company shall be liable for the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery payment of all such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act fees and expenses incurred by the Escrow Agent, except for such fees and expenses incurred by the Escrow Agent may, in its sole discretion, obey and due to (i) the failure of an Escrow Party to comply with all writs, orders, judgments any of its obligations hereunder or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to (ii) the contrary. If requirement by an Escrow Party that the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any perform duties outside the scope of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, which fees and expenses set forth in the immediately preceding clauses (i) and (ii) shall be paid by the applicable Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. Party. (d) The Escrow Agent may resign at any time by giving at least 30 days’ prior written notice to the Company and Xxxxxxx Partners, L.P., as representative of the Buyers, which resignation shall become effective upon the acceptance of appointment by the successor Escrow Agent by giving as provided in this Section 6(d). The resigning Escrow Agent may appoint a successor Escrow Agent, reasonably acceptable to the Escrow Parties. If a successor Escrow Agent shall not have been appointed within 20 days after such notice of resignation, any of the Escrow Parties or the Escrow Agent, at the expense of the Escrow Parties, may apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Notwithstanding the foregoing, any successor Escrow Agent shall be a financial institution organized under the laws of the United States of America and having a combined capital and surplus of not less then ten (10) days' written notice thereof than US $100,000,000. Any successor Escrow Agent, however appointed, shall execute and deliver to the predecessor Escrow Agent, with a copy to each of the Purchaser or Escrow Parties, an instrument accepting such appointment, and thereupon such successor Escrow Agent shall, without further act, become fully vested with all the Company. The Purchaser rights, powers, obligations and duties of the Company may terminate predecessor Escrow Agent hereunder with the same effect as if originally named the Escrow Agent by giving to the herein. The Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior shall have the right to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective withhold an amount equal to any amount due and the Escrow Agent will cease owing to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser plus any reasonable costs and the Company may agree upon. All indemnities granted to expenses the Escrow Agent will survive reasonably believes may be incurred by the Escrow Agent in connection with termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.

Appears in 1 contract

Samples: Escrow Agreement (Internet Capital Group Inc)

The Escrow Agent. 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. . 4.2 The Purchaser Company and the Company Investor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's ’s compliance in good faith with the terms hereof. . 4.3 In case proceedings should hereafter be taken in any court respecting the Subscription ProceedsShares and Warrants, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. . 4.4 The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds Shares and Warrants except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds Shares and Warrants belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. . 4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds Shares and Warrants as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. . 4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. . 4.7 In the event that the Subscription Proceeds Shares and Warrants are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such D/BIP/673027.1 compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. . 4.8 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. . 4.9 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds Shares and Warrants until the lawful determination of the issue between the parties hereto. . 4.10 If protest is made to any action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may continue to hold the Shares and Warrants until the right to the Shares and Warrants is legally determined by a court of competent jurisdiction or otherwise. 4.11 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser Company or the CompanyInvestor. The Purchaser Company and the Company Investor may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser Company and the Company Investor may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. . 4.12 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser Investor jointly. . 4.13 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser Company and the Company Investor or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription ProceedsShares and Warrants, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds Shares and Warrants into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.

Appears in 1 contract

Samples: Escrow Agreement (Pluristem Life Systems Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the (1) The Escrow Agent will act honestly undertakes to perform only such duties as are expressly set forth herein. (2) The Escrow Agent may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (3) The Escrow Agent shall not be liable for any action taken by it in good faith and will exercise reasonably believed by it to be authorized or within the rights or powers conferred upon it by this Escrow Agreement, and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. (4) In the event that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow AgentAgent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its successorsopinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and assigns, from and against its sole obligation shall be to keep safely all loss, costs, charges, suits, demands, claims, damages and expenses which property held in escrow until it shall be directed otherwise in writing by all of the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for other parties hereto or by reason a final order or on account judgment of a court of competent jurisdiction. (5) The Escrow Agent may resign and be discharged from its acting pursuant duties or obligations hereunder by giving notice in writing of such resignation specifying a date upon which such resignation shall take effect, which date shall not be less than sixty (60) days prior to this the date such notice is given and provided that such resignation shall not take effect until a successor Escrow Agent shall have been appointed jointly by Hubbxxx xxx the Shareholder Representative. (6) This Escrow Agreement or anything in any manner relating thereto or by reason expressly sets forth all the duties of the Escrow Agent's compliance in good faith Agent with the terms hereofrespect to any and all matters pertinent hereto. In case proceedings should hereafter No implied duties or obligations shall be taken in any court respecting the Subscription Proceeds, the read into this Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 Agreement against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for acting or failing bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement and shall not be deemed to act on have knowledge of nor responsibility under the advice terms of counselthe Merger Agreement. The Escrow Agent will not shall be bound in any way by any contract between under no duty to inquire into or investigate the parties hereto whether validity, accuracy or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency content of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentdocument.

Appears in 1 contract

Samples: Merger Agreement (Hubbell Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the (a) The Escrow Agent will act honestly shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successorsnature, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or no other duties shall be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingsimplied. The Escrow Agent will shall neither be responsible for, nor chargeable with, knowledge of, nor have no responsibility any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the other parties hereto, in respect of loss connection herewith, if any, including without limitation the Trust Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any person or entity has complied with any such agreements, nor shall any additional obligations of the Subscription Proceeds except Escrow Agent be inferred from the duty to exercise terms of such care agreements, even though reference thereto may be made in this Escrow Agreement. In the safekeeping thereof as it would exercise if event of any conflict between the Subscription Proceeds belonged to terms and provisions of this Escrow Agreement and those of the Underlying Agreement or any other agreement among the other parties hereto, the terms and conditions of this Escrow AgentAgreement shall control. The Escrow Agent may act on the advice of counsel but will rely upon and shall not be responsible liable for acting or failing refraining from acting upon any written notice, document, instruction or request furnished to act on it hereunder and believed by it to be genuine and to have been signed or presented by the advice proper party or parties without inquiry and without requiring substantiating evidence of counselany kind. The Escrow Agent will not shall be bound in under no duty to inquire into or investigate the validity, accuracy or content of any way by any contract between the parties hereto whether such document, notice, instruction or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forthrequest. The Escrow Agent will not shall have no duty to solicit any payments which may be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents due it or any of themFund, or that they are including, without limitation, the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it Escrow Deposits nor shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that have any duty or obligation to confirm or verify the said documents are accuracy or correctness of any amounts deposited with it as herein specified hereunder. The Escrow Agent shall have no duty or obligation to make any calculations of any kind hereunder. (b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the parties executing this Agreement with extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either the Managing Owner or Trust. In no event will the The Escrow Agent be deemed to have assumed may execute any liability of its powers and perform any of its duties hereunder directly or responsibility for the sufficiency, form through agents or attorneys and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if liable only for its gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) in the selection of any writing purporting such agent or attorney. The Escrow Agent may consult with counsel, accountants and other skilled persons to be such a notice, demand or protest is served upon the selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any manner sufficient to bring it to its attentionsuch counsel, accountants or other skilled persons. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent mayshall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its sole discretionopinion, obey and comply conflict with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and subject to applicable law or regulation, its sole obligation shall be to any other person, firm keep safely all property held in escrow until it shall be given a direction in writing by the Managing Owner and the Trust which eliminates such ambiguity or corporation by reason uncertainty to the satisfaction of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association a final and non-appealable order or corporation. It will, however, obey the order, judgment or decree of any a court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof Managing Owner and Trust agree to each of the Purchaser pursue any redress or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to recourse in connection with any dispute without making the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior party to the proposed date same. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of terminationany kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The resignation or termination Any liability of the Escrow Agent under this Escrow Agreement will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted limited to the Escrow Agent will survive the termination amount of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge fees paid to the Escrow Agent.

Appears in 1 contract

Samples: Subscription Escrow Agreement (Brookshire Raw Materials (U.S.) Energy USD Fund)

The Escrow Agent. In exercising the rights(a) The duties, duties responsibilities and obligations prescribed or confirmed by this Agreement, the of Escrow Agent will act honestly shall be limited to those expressly set forth herein and in good faith and will exercise that degree of careno duties, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and responsibilities or obligations shall be inferred or implied against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for subject to, nor required to comply with, any other agreement to which the Company or the Investor is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company or the Investor or an entity acting or failing to act on the advice of counselits behalf. The Escrow Agent will shall not be bound in required to expend or risk any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and own funds or otherwise incur any liability, financial or otherwise, in the only duty, liability and responsibility performance of any of its duties hereunder. (b) The Escrow Property shall be held by the Escrow Agent will be to hold either directly or through the Subscription Proceeds as herein directed Federal Reserve/Treasury Book-Entry System for United States and to pay federal agency securities (the "Book-Entry System"), The Depository Trust Company, a clearing agency registered with the Securities and deliver the same to such persons and Exchange Commission ("DTC"), or through any other such conditions as are herein set forthclearing agency or similar system (a "Clearing Agency"). The Escrow Agent will shall have no responsibility and shall not be required liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rates changes, or similar matters relating to pass upon securities held at DTC or with any Clearing Agency unless the sufficiency of any Escrow Agent shall have received actual and timely notice of the Subscription Proceeds same, nor shall the Escrow Agent have any responsibility or liability for the actions or omissions to ascertain whether or not act of the person or persons who have executedBook-Entry System, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents DTC or any of them, or that they are the same persons named therein or otherwise to pass upon Clearing Agency. (c) If at any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as time the Escrow Agent is concerned that the said documents are deposited served with it as herein specified by the parties executing this Agreement with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Agent. In no event will Property (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow AgentProperty), the Escrow Agent may, is authorized to comply therewith in any manner it or legal counsel of its sole discretion, obey own choosing deems appropriate; and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If if the Escrow Agent obeys and complies with any such writs, judicial or administrative order, judgment judgment, decree, writ or decrees it will other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto or to any other personperson or entity even though such order, firm judgment, decree, writ or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees process may be subsequently reversedmodified or vacated or otherwise determined to have been without legal force or effect. (d) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any instruction, modifiednotice, annulleddemand, set aside certificate or vacated. Except document from the Company and the Investor or any entity acting on behalf of the Company or the Investor, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Property, or any loss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Escrow Property, valued as herein otherwise providedof the date of deposit, but only to the extent of direct money damages. (e) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent is authorized or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and directed to disregard may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled hereunder. (f) As security for the due and punctual performance of any and all notices of the Company's and warnings which the Investor's obligations to the Escrow Agent hereunder, now or hereafter arising, the Company and the Investor hereby pledge, assign and grant to the Escrow Agent a continuing security interest in, and a lien on, the Escrow Property and all Distributions thereon or additions thereto. The security interest of the Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against the Company and the Investor and all third parties in accordance with the terms of this Agreement. (g) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company, as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. (h) The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility). (i) The Escrow Agent shall be given entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (j) The Escrow Agent shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or endorsement. The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. (k) The Escrow Agent shall not be under any duty to give the Escrow Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest. (l) At any time the Escrow Agent may request an instruction in writing in English from the Company and the Investor and may, at its own option, include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the Company and the Investor receive the Escrow Agent's request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested. (m) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the parties hereto Company or the Investor or is not in the form the Company and the Investor sent or intended to send (whether due to fraud, distortion or otherwise). The Company and the Investor shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication. (n) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company and the Investor, which eliminate such ambiguity or uncertainty. (o) In the event of any dispute between or conflicting claims among the Company and the Investor and any other personperson or entity with respect to any Escrow Property, firmthe Escrow Agent shall be entitled, association in its sole discretion, to refuse to comply with any and all claims, demands or corporationinstructions with respect to such Escrow Property so long as such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in any way to the Company and the Investor for failure or refusal to comply with such conflicting claims, demands or instructions. It willThe Escrow Agent shall be entitled to refuse to act until, howeverin its sole discretion, obey the either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of that the parties hereto or to any other person, firm, association or corporation, even if thereafter any time for appeal from such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties heretohas expired without an appeal having been filed with such court. The Escrow Agent may resign as shall act on such court order and legal opinions without further question. The Escrow Agent by giving not less then ten may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (10including reasonable attorneys' fees and expenses) days' written notice thereof to each incurred in connection with such proceeding shall be paid by, and shall be deemed a joint and several obligation of, the Company and the Investor. (p) The Escrow Agent shall have no responsibility for the contents of any writing of the Purchaser arbitrators or any third party contemplated herein as a means to resolve disputes and may conclusively rely without any liability upon the Companycontents thereof. (q) The Escrow Agent does not have any interest in the Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Purchaser Company and the Company may terminate Investor shall pay or reimburse the Escrow Agent by giving upon request for any transfer taxes or other taxes relating to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Property shall be subject to withholding regulations then in force with respect to United States taxes. The Company and the Investor will be effective and provide the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder with appropriate W-9 forms for tax identification number certifications, or on such other date as the Escrow Agent, the Purchaser and the Company may agree uponW-8 forms for non-resident alien certifications. All indemnities granted to the Escrow Agent will This paragraph shall survive the notwithstanding any termination of this Agreement or the resignation or termination removal of the Escrow Agent. Notwithstanding anything herein . (r) The Escrow Agent shall provide to the contraryCompany and the Investor monthly statements identifying transactions, the transfers or holdings of Escrow Agent may act Property and each such statement shall be deemed to be correct and final upon any written instructions given receipt thereof by the Company and the Purchaser jointly. Notwithstanding anything Investor unless the Escrow Agent is notified in writing, by the Company and the Investor, to the contrary contained herein, in within thirty (30) Business Days of the event date of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentstatement.

Appears in 1 contract

Samples: Escrow Agreement (Numatics Inc)

The Escrow Agent. In exercising (a) The Escrow Agent shall not receive any fees for its services but shall be reimbursed for all reasonable expenses, disbursements, and advances incurred or made by the rightsEscrow Agent in performance of its duties hereunder, which compensation and expenses shall be paid out of the Escrow Fund. (b) The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving written notice of such resignation to the Seller and obligations prescribed or confirmed by this Agreementthe Buyer specifying a date (not less than thirty (30) days after giving of such notice) when such resignation shall take effect. Upon such notice, the Buyer and the Seller shall appoint a new Escrow Agent who shall replace the resigning Escrow Agent hereunder upon the resignation date specified in such notice. If the Buyer and the Seller are unable to agree upon a successor escrow agent within thirty (30) days after such notice, the Escrow Agent will act honestly shall be entitled to appoint its successor. The Seller and the Buyer shall have the right at any time upon their mutual consent to substitute a new Escrow Agent by giving notice thereof to the Escrow Agent then acting. (c) The Escrow Agent shall have no duties or responsibilities whatsoever with respect to the Escrow Fund except as are specifically set forth herein and may conclusively rely, and shall be protected in acting or refraining from acting, on any written notice, instrument, request, consent, certificate, document, letter, telegram, order, resolution or signature believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties duly authorized to do so. The Escrow Agent shall have no responsibility for the contents of any such writing contemplated herein and may rely without any liability upon the contents thereof. (d) The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and will exercise that degree believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action taken or omitted to be taken by it in good faith, or if taken or omitted to be taken in accordance with advice of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses counsel (which the Escrow Agent, its successors or assigns counsel may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdictionown choosing), and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own fraud, willful misconduct or gross negligence. (e) Each of the parties hereto or Seller and the Buyer and their successors and assigns agree to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If indemnify the Escrow Agent receives and hold it harmless against any written instructions contrary and all damages, losses, liabilities or expenses (including reasonable attorneys' fees and expenses) incurred by it hereunder as a consequence of such party's action, and the parties agree jointly to the instructions contained in this Agreement, indemnify the Escrow Agent may continue to and hold the Subscription Proceeds until the lawful determination it harmless against any and all damages, losses, liabilities or expenses (including reasonable attorneys' fees and expenses) incurred by it hereunder that are not a consequence of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent any party's action, except in either case for damages, losses, liabilities or expenses incurred by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation resulting from its own fraud, willful misconduct or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentgross negligence.

Appears in 1 contract

Samples: Stock Purchase Agreement (Driversshield Com Corp)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. 6.1 Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Shares/Escrow Funds as directed by a writing jointly signed by the SAC Representative and SM&A. The reasonable fees and expenses of the Escrow Agent (as set forth on the fee schedule attached hereto as Schedule 3) in connection with its performance of this Agreement shall be borne by SM&A. The Escrow Agent shall not be liable for any act or omission to act under this Agreement, including any and all claims made against the Escrow Agent as a result of its holding the Escrow Shares/Escrow Funds in its own name, except for its own gross negligence or willful misconduct. The Escrow Agent shall not be liable for, and the Shareholders (only to the extent of their proportionate share of the Escrow Shares/Escrow Funds) and SM&A shall jointly and severally indemnify the Escrow Agent against, any losses or claims (including reasonable out-of-pocket expenses) arising out of, any action taken or omitted in good faith hereunder or upon the advice of counsel. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Agreement. The Escrow Agent may act upon any written instructions given instrument or signature believed by the Company it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Agreement and applicable laws, and the Purchaser jointly. Notwithstanding anything Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including, but not limited to, the Merger Agreement. 6.2 The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the contrary contained hereinparties hereto, in at the addresses set forth herein or at such other address as the parties shall provide, at least 30 days prior to the date specified for such resignation to take effect. In such event of any dispute arising between the Purchaser SM&A and the Company or between any other persons or between any SAC Representative shall by agreement appoint a successor escrow agent within said 30 days; if SM&A and the SAC Representative do not agree upon the selection of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceedsa successor escrow agent within such period, the Escrow Agent may in its sole discretion deliver and interplead appoint a successor escrow agent. Upon the Subscription Proceeds into court and effective date of such delivery and interpleading will be an effective discharge to resignation, the Escrow AgentShares together with all cash and other property then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by SM&A and the SAC Representative. 6.3 In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in any court of competent jurisdiction and request that such court determine the respective rights of such parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to either party as a consequence of any such claims or demands. The reasonable fees and costs incurred by the Escrow Agent in interpleading said parties shall be borne equally by SM&A and the Shareholders as a group. 6.4 The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto.

Appears in 1 contract

Samples: Escrow Agreement (Sm&a Corp)

The Escrow Agent. In exercising Section A. Concerning the rightsEscrow Agent. --------------------------- (a) The duties of the Escrow Agent are only such as are herein specifically provided, and the Escrow Agent shall not be liable for anything it may do or refrain from doing in connection with its duties hereunder except as a result of its gross negligence, willful misconduct or bad faith. (b) The Escrow Agent shall be reimbursed by the Company for its fees (more specifically set forth on Exhibit A hereto) and any out-of-pocket expenses (including counsel fees) reasonably incurred by it in connection with the performance of its duties and obligations prescribed or confirmed by under this Agreement, . (c) Each of the Company and the Beneficiaries hereby agree to indemnify the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successorsfor, and assignsto hold it harmless against, from and against all any loss, costsliability or expense incurred without gross negligence, chargeswillful misconduct or bad faith on its part, suitsarising out of or in connection with the performance of any of its powers or duties hereunder, demandsincluding, claimswithout limitation, damages the costs and expenses which the Escrow Agent, its successors of defending itself against any claim or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything liability in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. connection therewith. (d) The Escrow Agent will shall be entitled to rely upon and to act and refrain from acting in reliance upon any written notice, request, consent, certificate, order, affidavit, letter, telegram or other document furnished to it hereunder and believed by it to be genuine and to have no responsibility in respect of loss of been signed or sent by the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agentproper party. The Escrow Agent may act on the advice of consult with counsel but will and shall not be responsible liable for acting anything it may do or failing to act on refrain from doing in accordance with the advice written opinion and instructions of counsel. Copies of all such opinions shall be made available to the other parties hereto upon request. (e) Any amounts to be paid by the Escrow Agent to the Beneficiary or the Company hereunder shall be paid in cash, by wire transfer or by cashier's or certified check or by any check drawn by the Escrow Agent. (f) The Escrow Agent will not be bound in any way by any contract between the parties hereto whether shall make payment to or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of themfor, or that they are the same persons named therein deliver documents to, any party only if in its judgment such payment or otherwise to pass upon any requirement of such instruments that delivery may be essential made under the terms of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing without its incurring any liability. If conflicting demands not expressly provided for in this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability are made or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is notices served upon the Escrow Agent in any manner sufficient to bring it with respect to its attentionaction or omission under this Agreement, the parties hereto agree that the Escrow Agent shall have the right to elect to do either or both of the following: (i) withhold and stop all future actions or omissions on its part under this Agreement; or (ii) file a suit in interpleader or for instructions or for a declaratory judgment for other relief and obtain an order from the proper court requiring the parties to litigate in such court their conflicting claims and demands. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property action is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agenttaken, the Escrow Agent may, in its sole discretion, obey shall be fully released and comply with discharged from all writs, orders, judgments obligations to perform any duties or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of obligations imposed upon it by this Agreement to unless and until otherwise ordered by such court. (g) In the contrary. If event the Escrow Agent obeys and complies with becomes involved in any such writs, order, judgment litigation or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation dispute by reason hereof, it is hereby authorized to deposit with the clerk of such compliancea court of competent jurisdiction any and all funds or other property held by it pursuant hereto and, notwithstanding that such writsthereupon, ordersshall stand fully relieved and discharged of any further duties hereunder. Also, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedby reason hereof, the Escrow Agent is hereby authorized and directed to disregard interplead all interested parties in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, jurisdiction and it is hereby authorized to comply deposit with and obey such orders, judgements or decrees and in case the clerk of such compliancecourt any and all funds, securities or other property held by it pursuant hereto and, thereupon, shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser stand fully relieved and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event discharged of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentfurther duties hereunder.

Appears in 1 contract

Samples: Securities Purchase Agreement (Wiltek Inc)

The Escrow Agent. In exercising the rights(a) The duties, duties responsibilities and obligations prescribed or confirmed by this Agreement, the of Escrow Agent will act honestly shall be limited to those expressly set forth herein and in good faith and will exercise that degree of careno duties, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and responsibilities or obligations shall be inferred or implied against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for subject to, nor required to comply with, any other agreement to which the Purchaser or the Seller is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Purchaser or the Seller or an entity acting or failing to act on the advice of counselits behalf. The Escrow Agent will shall not be bound in required to expend or risk any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and own funds or otherwise incur any liability, financial or otherwise, in the only duty, liability and responsibility performance of any of its duties hereunder. (b) The Escrow Property shall be held by the Escrow Agent will be to hold either directly or through the Subscription Proceeds as herein directed Federal Reserve/Treasury Book-Entry System for United States and to pay federal agency securities (the “Book-Entry System”), The Depository Trust Company, a clearing agency registered with the Securities and deliver the same to such persons and Exchange Commission (“DTC”), or through any other such conditions as are herein set forthclearing agency or similar system (a “Clearing Agency”). The Escrow Agent will shall have no responsibility and shall not be required liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rates changes, or similar matters relating to pass upon securities held at DTC or with any Clearing Agency unless the sufficiency of any Escrow Agent shall have received actual and timely notice of the Subscription Proceeds same, nor shall the Escrow Agent have any responsibility or liability for the actions or omissions to ascertain whether or not act of the person or persons who have executedBook-Entry System, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents DTC or any of them, or that they are the same persons named therein or otherwise to pass upon Clearing Agency. (c) If at any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as time the Escrow Agent is concerned that the said documents are deposited served with it as herein specified by the parties executing this Agreement with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Agent. In no event will Property (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow AgentProperty), the Escrow Agent may, is authorized to comply therewith in any manner it or legal counsel of its sole discretion, obey own choosing deems appropriate; and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If if the Escrow Agent obeys and complies with any such writs, judicial or administrative order, judgment judgment, decree, writ or decrees it will other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto or to any other personperson or entity even though such order, firm judgment, decree, writ or corporation process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. (d) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Purchaser and the Seller or any entity acting on behalf of the Purchaser or the Seller, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Property, or any loss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Escrow Property, valued as of the date of deposit, but only to the extent of direct money damages. (e) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Purchaser and the Seller, as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. (f) The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility). (g) The Escrow Agent shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (h) The Escrow Agent shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such compliancedocument, notwithstanding security or endorsement. The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. (i) The Escrow Agent shall not be under any duty to give the Escrow Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest. (j) At any time the Escrow Agent may request an instruction in writing in English from the Purchaser and the Seller and may, at its own option, include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that such writsthe specified date shall be at least three (3) business days after the Purchaser and the Seller receives the Escrow Agent’s request for instructions and its proposed course of action, ordersand provided further that, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedprior to so acting, the Escrow Agent has not received the written instructions requested. (k) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Purchaser or the Seller or is not in the form the Purchaser and directed the Seller sent or intended to disregard send (whether due to fraud, distortion or otherwise). The Purchaser and the Seller shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication. (l) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Purchaser and the Seller, which eliminates such ambiguity or uncertainty. (m) In the event of any dispute between or conflicting claims among the Purchaser and the Seller and any other person or entity with respect to any Escrow Property, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all notices claims, demands or instructions with respect to such Escrow Property so long as such dispute or conflict shall continue, and warnings which may the Escrow Agent shall not be given or become liable in any way to it the Purchaser and the Seller for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until, in its sole discretion, either (i) such conflicting or adverse claims or demands shall have been determined by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of that the parties hereto or to any other person, firm, association or corporation, even if thereafter any time for appeal from such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties heretohas expired without an appeal having been filed with such court. The Escrow Agent may resign as shall act on such court order and legal opinions without further question. The Escrow Agent by giving not less then ten may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (10including reasonable attorneys’ fees and expenses) days' written notice thereof to each incurred in connection with such proceeding shall be paid by, and shall be deemed a joint and several obligation of, the Purchaser and the Seller. (n) The Escrow Agent shall have no responsibility for the contents of any writing of the Purchaser arbitrators or any third party contemplated herein as a means to resolve disputes and may conclusively rely without any liability upon the Companycontents thereof. (o) The Escrow Agent does not have any interest in the Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Seller shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Purchaser and the Company may terminate Seller will provide the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of terminationwith appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will This paragraph shall survive the notwithstanding any termination of this Escrow Agreement or the resignation or termination removal of the Escrow Agent. Notwithstanding anything herein to the contrary, the . (p) The Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything shall provide to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company Seller monthly statements identifying transactions, transfers or between any other persons or between any holdings of them with respect Escrow Property and each such statement shall be deemed to be correct and final upon receipt thereof by the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to Purchaser and the Subscription Proceeds, Seller unless the Escrow Agent may is notified in its sole discretion deliver writing, by the Purchaser and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge Seller, to the Escrow Agentcontrary within thirty (30) business days of the date of such statement.

Appears in 1 contract

Samples: Escrow Agreement (Diametrics Medical Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10a) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Shares as directed by a writing jointly signed by the Stockholder Representative and the Buyer. The reasonable fees and expenses of the Escrow Agent in connection with its execution and performance of this Agreement as set forth on Annex II hereto shall be borne by the Buyer. The Escrow Agent shall not be liable for any act or omission to act under this Agreement, including any and all claims made against the Escrow Agent as a result of its holding the Escrow Shares in its own name, except for its own gross negligence or willful misconduct. The Escrow Agent shall not be liable for, and the Buyer and the Non-Employee Stockholders shall jointly and severally indemnify the Escrow Agent against any losses or claims (including reasonable court costs, attorneys' fees and costs and other out-of- pocket expenses) arising out of any action taken or omitted in good faith hereunder. The Escrow Agent may consult counsel satisfactory to it, including house counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages. The Escrow Agent may act upon any written instructions given instrument or signature believed by the Company it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Agreement and applicable law and the Purchaser jointly. Notwithstanding anything Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including without limitation, the Merger Agreement. (b) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the contrary contained hereinparties hereto, in at the event of any dispute arising between addresses set forth herein or at such other address as the Purchaser and the Company or between any other persons or between any of them with respect parties shall provide, at least thirty (30) days prior to the Subscription Agreementdate specified for such resignation to take effect. In such event the Buyer, this Agreement or any matters arising theretowith the approval of the Stockholder Representative which will not be unreasonably withheld, or with respect to shall appoint a successor escrow agent within that thirty-day period; if the Subscription ProceedsBuyer does not designate a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent or may apply to a court of competent jurisdiction for the appointment of such successor. Upon the effective date of such resignation, the Escrow Shares together with all cash and other property then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in its sole discretion deliver writing by the Buyer and the Stockholder Representative. (c) In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the other parties hereto, the Escrow Agent shall have the right to interplead the Subscription Proceeds parties in any court of competent jurisdiction and request that such court determine the respective rights of the parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to the other parties as a consequence of any such claims or demands. (d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as fiduciary or otherwise in any jurisdiction other than the Commonwealth of Massachusetts. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into court or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto. (e) The Buyer and the Stockholder Representative, jointly and severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent on any such delivery payment or other activities under this Agreement. The Buyer and interpleading will be an effective discharge the Stockholder Representative undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other government charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Escrow Agreement. The Buyer and the Stockholder Representative, jointly and severally, agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other government charges, including, without limitation, the withholding or deduction or the failure to withhold or deduct same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties. (f) The Escrow Agent shall be entitled to reimbursement on demand for all expenses incurred in connection with the administration of the escrow created hereby which are in excess of its compensation for normal services hereunder, including, without limitation, payment of all legal fees and expenses incurred by the Escrow Agent in connection with the resolution of any Claim by any party hereunder.

Appears in 1 contract

Samples: Non Employee Stockholder Escrow Agreement (CMG Information Services Inc)

The Escrow Agent. In exercising the rights, (a) The Escrow Agent shall have no duties or obligations hereunder except those specifically set forth herein and such duties and obligations prescribed or confirmed shall be determined solely by the express provisions of this Agreement. The Escrow Agent shall have no liability under and no duty to inquire as to the provisions of any agreement other than this Escrow Agreement. In connection with its duties hereunder, the Escrow Agent will act honestly shall be protected in acting or refraining from acting upon any written notice, request, consent, certificate, order, affidavit, letter, telegram or other document furnished to it hereunder and believed by it to be genuine and to have been signed or sent by the proper party or parties, and the Escrow Agent shall not be liable for anything it may do or refrain from doing in connection with its duties hereunder, except for such liabilities as may result from its own gross negligence or willful misconduct. In the administration of the Escrow Account, the Escrow Agent may execute any of its powers and perform its duties hereunder directly or through agents or attorneys and may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for the performance of agents selected by it with reasonable care or for anything done, suffered or omitted in good faith and will exercise that degree by it in accordance with the advice or opinion of careany such counsel, diligence and skill that a reasonably prudent person would exercise accountants or other skilled persons. (b) In the event the Escrow Agent shall be uncertain as to its duties or rights under this Agreement or shall receive any instruction, claim or demand that, in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify opinion of the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which is in conflict with the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account provisions of its acting pursuant to this Agreement or anything in (any manner relating thereto or by reason of the foregoing, an “Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription ProceedsAgent Dispute”), the Escrow Agent will not shall be obliged entitled to defend refrain from taking any action with respect to such Escrow Agent Dispute until it shall be directed otherwise by a final and nonappealable order of a court of competent jurisdiction or by an instrument signed by all of the Escrow Parties. In the event of any Escrow Agent Dispute, the Escrow Agent shall be entitled to petition a court of competent jurisdiction in the County of New York, State of New York to resolve such Escrow Agent Dispute, and each of the Escrow Parties consent to the jurisdiction of any such action or submit its rights court with respect to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of any such proceedings. Escrow Agent Dispute. (c) The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient reimbursed for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified reasonable fees and expenses, including without limitation those fees set forth on Schedule IV hereto and reasonable counsel fees and disbursements, incurred by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to connection with the performance of its attentionduties and obligations under this Agreement. In The Company shall be responsible for all such reasonable fees and expenses. The Company shall be liable for the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery payment of all such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act fees and expenses incurred by the Escrow Agent, except for such fees and expenses incurred by the Escrow Agent may, in its sole discretion, obey and due to (i) the failure of an Escrow Party to comply with all writs, orders, judgments any of its obligations hereunder or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to (ii) the contrary. If requirement by an Escrow Party that the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any perform duties outside the scope of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, which fees and expenses set forth in the immediately preceding clauses (i) and (ii) shall be paid by the applicable Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. Party. (d) The Escrow Agent may resign as at any time by giving at least 30 days’ prior written notice to the Escrow Parties, which resignation shall become effective upon the acceptance of appointment by the successor Escrow Agent by giving as provided in this Section 6(d). The resigning Escrow Agent may appoint a successor Escrow Agent, reasonably acceptable to the Escrow Parties. If a successor Escrow Agent shall not have been appointed within 20 days after such notice of resignation, any of the Escrow Parties may apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Notwithstanding the foregoing, any successor Escrow Agent shall be a financial institution organized under the laws of the United States of America and having a combined capital and surplus of not less then ten (10) days' written notice thereof than US $100,000,000. Any successor Escrow Agent, however appointed, shall execute and deliver to the predecessor Escrow Agent, with a copy to each of the Purchaser or Escrow Parties, an instrument accepting such appointment, and thereupon such successor Escrow Agent shall, without further act, become fully vested with all the Company. The Purchaser rights, powers, obligations and duties of the Company may terminate predecessor Escrow Agent hereunder with the same effect as if originally named the Escrow Agent by giving to the herein. The Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior shall have the right to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective withhold an amount equal to any amount due and the Escrow Agent will cease owing to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser plus any reasonable costs and the Company may agree upon. All indemnities granted to expenses the Escrow Agent will survive reasonably believes may be incurred by the Escrow Agent in connection with termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.

Appears in 1 contract

Samples: Escrow Agreement (Internet Capital Group Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Fund as directed by a writing signed by the Escrow Representative and the Company. The reasonable fees and expenses of the Escrow Agent, including the fees and disbursements of its counsel, if any, in connection with its performance of this Agreement shall be paid from the income on the Escrow Fund and, if and to the extent not so paid, shall be borne by the Company. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Agreement. The Escrow Agent may act upon any written instructions given instrument or signature believed by the Company it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Escrow Agreement and applicable laws, and the Purchaser jointlyEscrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement. Notwithstanding anything The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the contrary contained hereinparties hereto, in at the event of any dispute arising between addresses set forth herein or at such other address as the Purchaser and the Company or between any other persons or between any of them with respect parties shall provide, at least thirty (30) business days prior to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect date specified for such resignation to take effect. If the Subscription Proceedsparties hereto do not designate a successor escrow agent within said thirty (30) business days, the Escrow Agent may in its sole discretion deliver appoint a successor escrow agent. Upon the effective date of such resignation, all cash and interplead the Subscription Proceeds into court other payments and such delivery and interpleading will be an effective discharge to all other property then held by the Escrow AgentAgent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by the parties hereto. In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in any court of competent jurisdiction and request that such court determine such respective rights of the parties with respect to this Escrow Agreement, and upon doing so, the Escrow Agent shall be released from any obligations or liability to either party as a consequence of any such claims or demands. The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be under a duty to examine into or pass upon the validity, binding effect, execution or sufficiency of this Escrow Agreement or of any agreement amendatory or supplemental hereto.

Appears in 1 contract

Samples: Supply Agreement (C P Clare Corp)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed The acceptance by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance duties under this Escrow Agreement is expressly subject to the following terms and conditions, which the parties hereto agree shall govern and control with respect to their respective rights, duties, liabilities and immunities: (a) The Escrow Agent is acting solely as a stakeholder at the request of the Seller and the Buyer and for their convenience and shall not incur any liability whatsoever, except for its own willful misconduct or bad faith. (b) The Escrow Agent may consult with, and obtain advice from, counsel of its own choice in good faith with the terms hereof. In case proceedings should hereafter be taken in event of any court respecting bona fide question as to any of the Subscription Proceeds, provisions hereof or the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingsAgent's duties hereunder. The Escrow Agent will have shall incur no responsibility liability and shall be fully protected in respect acting in good faith in accordance with the opinion and instructions of loss such counsel. (c) The Escrow Agent or any member of its firm shall be permitted to act as counsel for the Subscription Proceeds except Seller in any dispute relating to, or arising from, this Escrow Agreement or the duty to exercise such care Asset Purchase Agreement, or any other agreement contemplated thereby. (d) The Escrow Agent shall not be bound or affected in the safekeeping any way by any notice of modification or cancellation of this Escrow Agreement unless written notice thereof as it would exercise if the Subscription Proceeds belonged is given to the Escrow AgentAgent by the Seller and the Buyer in accordance with Section 11 hereof. The Escrow Agent shall not be bound by any modifications of its obligations hereunder unless the Escrow Agent consents in writing thereto. The Escrow Agent shall be entitled to rely upon any judgment, certification, demand, notice or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof, provided that the Escrow Agent is delivered proof of service of notice as provided in Section 11 hereof. (e) The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass reliance upon any requirement of such instruments that may be essential of their validity, but instrument or signature reasonably believed by it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey genuine and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue assume that any person purporting to hold the Subscription Proceeds until the lawful determination give any notice or receipt of the issue between the parties hereto. advice or make any statement in connection herewith has been duly authorized so to do. (f) The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser Seller and the Company may terminate Buyer, jointly and severally, agree to indemnify and hold harmless the Escrow Agent by giving to from and against any loss, liability, cost and expense (including attorneys' fees under Section 7(b) hereof or otherwise), claim or demand arising out of, or in connection with, the performance of its obligations in accordance with the provisions of this Escrow Agreement, except for any of the foregoing arising out of the gross negligence, willful misconduct or bad faith of the Escrow Agent a notice of termination executed by each of them not less than Agent. (g) Upon ten (10) days prior written notice to the proposed Seller and the Buyer, the Escrow Agent shall have the absolute right at any time to resign as the Escrow Agent hereunder. If the Escrow Agent exercises such right, the Seller and the Buyer shall designate a new Escrow Agent hereunder within such ten (10) day period. Upon the effective date of terminationsuch resignation, the Escrow Agent shall deliver all property then held by it to such person or entity as may be designated in writing by the Seller and the Buyer, whereupon all of the Escrow Agent's duties and obligations hereunder shall cease and terminate. The resignation or termination If no such person shall have been designated by such time, all duties and obligations of the Escrow Agent will be effective shall nevertheless terminate and the Escrow Agent will cease to be bound by this Agreement on shall deposit the date that is ten (10) days after Escrowed Shares with the date of receipt clerk of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, court in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may jurisdiction in which it maintains its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentprincipal office.

Appears in 1 contract

Samples: Escrow Agreement (Signal Apparel Company Inc)

The Escrow Agent. In exercising To induce the rights, duties and obligations prescribed or confirmed by Escrow Agent to act under this Agreement, it is further agreed by the IRS and Kollmans that: (a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested Escrowed Property held hereunder shall not earn or accrue interest. (b) This Agreement expressly sets forth all the duties of the Escrow Agent will act honestly with respect to any and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstancesall matters pertinent hereto. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors No implied duties or assigns may at any time or times hereafter bear, sustain, suffer or obligations shall be put unto for or by reason or on account of its acting pursuant to read into this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for acting or failing to act on bound by the advice provisions of counsel. any agreement among the other Parties hereto except this Agreement. (c) The Escrow Agent will shall not be bound in any way by any contract between the parties hereto whether liable, except for its own gross negligence or not it has notice thereof willful misconduct and, except with respect to claims based upon such gross negligence or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as willful misconduct that are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by successfully asserted against the Escrow Agent, the Escrow Agent may, in its sole discretion, obey IRS and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If Kollmans shall jointly and severally indemnify and hold harmless the Escrow Agent obeys (and complies any successor escrow agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with any such writs, order, judgment or decrees it will not be liable to any of this Agreement. Without limiting the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedforegoing, the Escrow Agent is authorized and directed to disregard shall in no event be liable in connection with its sole discretion investment or reinvestment of any and all notices and warnings which may be given to cash held by it by hereunder in good faith, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the parties hereto Escrowed Property or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree loss of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof interest incident to any of the parties hereto or to such delays. This Section 5(c) shall survive notwithstanding any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. (d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Notwithstanding anything herein The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (e) The Escrow Agent may act pursuant to the contraryadvice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice. (f) The Escrow Agent does not have any interest in the Escrowed Property deposited under this Agreement but is serving as escrow holder only and having only possession thereof. The Kollmans shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrowed Property incurred in connection with this Agreement and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent. (g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it. (h) The Escrow Agent shall not be called upon to advise any Party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. (i) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property to any successor escrow agent jointly designated by the other Parties hereto in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the earlier of such date (the "Resignation Date"): (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other Parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the IRS and Kollmans on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other Parties hereto or a Final Determination. (j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof. (k) In the event of any disagreement between the IRS and Kollmans resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent may act upon any shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received a written instructions given agreement executed by the IRS and Kollmans directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such agreement. The Escrow Agent shall not be or become liable in any way or to any person for its failure or refusal to act during any pending disagreement. The Escrow Agent shall act on such agreement without further question. (l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 paid by the Kollmans at the time of execution of this Agreement and $2,500 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel) not to exceed $1,000, absent any litigation or other dispute arising under this Agreement. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for in this Agreement may be taken from any Escrow Property. (m) No prospectuses, press releases, reports and promotional material, or other similar materials which mention in any language the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other Parties hereto or on such Parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto; provided, however, that the Escrow Agent acknowledges that the IRS may file a copy of this Agreement as an exhibit with the IRS's filings required under the Securities Exchange Act of 1934, as amended, and the Escrow Agent consents to the appearance of its name in such filings. (n) The other Parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depositary Trust Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow AgentFederal Reserve Book Entry System.

Appears in 1 contract

Samples: Pledge and Escrow Agreement (Cell Tech International Inc)

The Escrow Agent. In exercising the rightsFees ---- 3.01 The Escrow Agent shall be entitled to charge reasonable fees and disbursements in connection with acting in that capacity hereunder, duties which fees and obligations prescribed or confirmed disbursements shall be borne by this Agreement, Communicate. Indemnity --------- 3.02 Each of Communicate and SIDEN jointly and severally covenants to indemnify and save harmless the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against any and all loss, costs, charges, suits, demands, claims, damages actions, causes of action, damages, costs (including, without limitation, the costs of any interpleader action), expenses and expenses which the Escrow Agent, its successors liabilities arising from or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith way connected with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will acting in that capacity hereunder, provided that the Escrow Agent has not be obliged to defend any such action committed an act of gross negligence or submit wilful misconduct in carrying out its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs obligations hereunder. Duty of such proceedings. Care ------------ 3.03 The Escrow Agent will shall have no duties except those which are expressly set forth herein and shall have no responsibility in respect of loss of the Subscription Proceeds Escrow Documents except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to Escrow Documents were the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein Other Rights and Duties 3.04 It is acknowledged and agreed that: (a) the duties and obligations of the Escrow Agent shall be determined solely by the express provisions of this Agreement. No implied covenants, duties, responsibilities or obligations shall be read into this Agreement in relation to the contraryEscrow Agent and the Escrow Agent shall not be bound by the provisions of any other agreement between Communicate and SIDEN; (b) the Escrow Agent shall not be liable for any action taken, suffered or omitted by it in good faith and reasonably believed to be within its authority, rights, discretions or powers; (c) the Escrow Agent may act upon written notice, certificate, instructions or other document issued to it and executed by a party believed to be genuine and may assume that any written instructions given person purporting to act on behalf of a party has been duly authorized to do so; (d) the Escrow Agent may act through its duly appointed agents and attorneys; (e) the Escrow Agent shall not be bound by any notice of claim or demand or any waiver, modification, amendment, termination or rescission of this Agreement; and (f) the Company and the Purchaser jointly. Notwithstanding anything Escrow Agent shall not be required to the contrary contained herein, in the event of defend any dispute arising between the Purchaser and the Company or between any other persons or between any of them legal proceedings which may be commenced with respect to the Subscription Agreementto, or arising out of, this Agreement or commence any matters arising theretolegal proceedings unless it is indemnified against the cost and expense of such defence or action to its sole satisfaction including, or with respect to without limitation, the Subscription Proceeds, posting of any security which the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentrequire.

Appears in 1 contract

Samples: Escrow Agreement (Troyden Corp)

The Escrow Agent. In exercising the rights, duties (a) All fees and obligations prescribed or confirmed by this Agreement, expenses of the Escrow Agent will act honestly in connection with its performance of this Agreement shall be borne and in good faith and will exercise that degree paid exclusively by the Purchaser (within thirty (30) days after receipt of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree appropriate invoices from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent). Under no circumstances shall any fees, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns other amounts that may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant payable to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action paid by the Seller or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to Seller's Representative or from the indemnity given in Clause 4.2 against its costs of such proceedingsEscrow Fund. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds shall not be liable for any act or omission to act under this Agreement, except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agentfor its own gross negligence or willful misconduct. The Escrow Agent may act on the advice of counsel but will shall not be responsible liable for, and the Purchaser agrees to indemnify the Escrow Agent for acting and save it harmless from, any claims, demands, losses or failing to act on damages (including reasonable attorneys' fees and expenses) arising out of any action taken or omitted in good faith hereunder or upon the advice of counsel. The Escrow Agent will may decline to act and shall not be bound liable for any failure to act if in any way by any contract between the parties hereto whether or not it has notice thereof or of doubt as to its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forthduties under this Agreement. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass may act upon any requirement of such instruments instrument or signature believed by it to be genuine and may assume that may the information contained therein is true and accurate and that any Person purporting to give any notice or instruction hereunder, reasonably believed by it to be essential of their validityauthorized, but it has been duly authorized to do so. The Escrow Agent's duties shall be sufficient for all purposes under determined only with reference to this Agreement insofar as and applicable laws, and the Escrow Agent is concerned that the said documents are deposited not charged with it as herein specified knowledge of or any duties or responsibilities in connection with any other document or agreement. The Escrow Agent is hereby authorized to disregard any and all warnings by any of the parties executing this Agreement hereto or by any other Person, excepting only orders or process of courts of law, or Arbitration Awards made pursuant to Section 4(d) hereof, and is hereby expressly authorized to comply with the Escrow Agentand obey orders, judgments or decrees of any court or Arbitration Awards. In no event will case the Escrow Agent be deemed to have assumed obeys or complies with any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made of any court or entered affecting such property or affecting any act by the Escrow AgentArbitration Award, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation Person by reason of such compliance, notwithstanding the fact that any such writsorder, ordersjudgment, judgments decree or decrees Arbitration Award may be subsequently reversed, modified, annulled, set aside or vacatedvacated or found to have been entered without jurisdiction. Except as herein otherwise provided, the The Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any for fluctuations in the value of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If Escrow Shares which might affect the value of distributions from the Escrow Fund. The Escrow Agent receives shall not be liable in the event that previous distributions from the Escrow Fund for Seller's Arbitration Expenses, Seller's Representative Expenses or Defense Costs result in insufficient funds in the Escrow Fund to fully pay any written instructions contrary required distribution to the instructions contained in this AgreementPurchaser or the Seller's Representative. (b) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty (30) days prior to the date specified for such resignation to take effect. In such event the Purchaser and the Seller's Representative shall jointly appoint a successor escrow agent within said thirty (30) days; if the Purchaser and the Seller's Representative do not appoint a successor escrow agent within such period, the Escrow Agent may continue appoint, or petition a court of competent jurisdiction for the appointment of, a successor escrow agent. Upon the effective date of such resignation, the Escrow Fund shall be delivered by the Escrow Agent to hold such successor escrow agent or as otherwise shall be designated in a writing jointly signed by the Subscription Proceeds until Purchaser and the lawful determination of Seller's Representative. (c) In the issue between event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in and deposit the Escrow Fund with any court of competent jurisdiction and request that such court determine the respective rights of such parties with respect to this Agreement and the Escrow Fund and, upon doing so, the Escrow Agent shall be released from any obligations or liability to any other party hereunder as a consequence of any such claims or demands. The Purchaser shall indemnify the Escrow Agent for and hold it harmless from any liability to any Person as a result of such deposit and interpleader action, including any legal fees and expenses incurred by the Escrow Agent in connection therewith. (d) The Escrow Agent may execute any of its powers or responsibilities hereunder, and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent may resign as Escrow Agent by giving shall not less then ten (10) days' written notice thereof be responsible for and shall not be under a duty to each of examine, inquire into or pass upon the Purchaser validity, binding effect, execution or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination sufficiency of this Agreement or of any amendment or supplement hereto. (e) The Seller hereby agrees that it is aware of and consents to the resignation or termination fact that the Escrow Agent has in the past, is now, and may in the future represent the Purchaser in other transactions as an underwriter, financial advisor, placement agent, etc., in connection with the investment banking activities of the Escrow Agent. Notwithstanding anything herein The Purchaser hereby agrees that it is aware of and consents to the contraryfact that, along with representing it in other transactions, the Escrow Agent may act upon any written instructions given by has represented the Company and in connection with the Purchaser jointlysale of shares of the Company under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between Both the Purchaser and the Company or between any other persons or between any Seller acknowledge these conflicts of them with respect to the Subscription Agreementinterests and potential future conflicts of interests and, this Agreement or any matters arising theretodespite this, or with respect to the Subscription Proceeds, affirm their request that the Escrow Agent may in accept its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge obligations pursuant to the Escrow Agentthis Agreement.

Appears in 1 contract

Samples: Escrow Agreement (Tulpan Yossi)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, To induce the Escrow Agent will to act honestly hereunder, it is further agreed by Acquiror and in good faith and will exercise that the Seller Representative that: (a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care, diligence care than it gives its own similar property and skill that a reasonably prudent person would exercise shall not be required to invest any Escrowed Property held hereunder except as directed in comparable circumstancesthis Agreement. The Purchaser and Uninvested Escrowed Property held hereunder shall not earn or accrue Interest. (b) This Agreement expressly sets forth all the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason duties of the Escrow Agent's compliance in good faith Agent with the terms hereofrespect to any and all matters pertinent hereto. In case proceedings should hereafter No implied duties or obligations shall be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 read into this Agreement against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for acting or failing to act on bound by the advice provisions of counsel. any agreement among the other parties hereto except this Agreement. (c) The Escrow Agent will shall not be bound in any way by any contract between the parties hereto whether liable, except for its own gross negligence or not it has notice thereof willful misconduct and, except with respect to claims based upon such gross negligence or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as willful misconduct that are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by successfully asserted against the Escrow Agent, Acquiror, Xxxxxxxx and the Seller Representative (on behalf of the Target's shareholders) shall jointly and severally indemnify and hold harmless the Escrow Agent may(and any successor escrow agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in its sole discretion, obey and comply connection with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to Agreement. Without limiting the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedforegoing, the Escrow Agent is authorized and directed to disregard shall in no event be liable in connection with its sole discretion investment or reinvestment of any and all notices and warnings which may be given to cash held by it by hereunder in good faith, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the parties hereto Escrowed Property or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree loss of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof Interest incident to any of the parties hereto or to such delays. This Section l0(c) shall survive notwithstanding any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. (d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Notwithstanding anything herein to the contrary, the The Escrow Agent may act in reliance upon any written instructions given instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the Company and the Purchaser jointly. Notwithstanding anything provisions hereof has been duly authorized to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentdo so.

Appears in 1 contract

Samples: Merger Agreement (Haggar Corp)

The Escrow Agent. In exercising the rights, duties and 4.1 The obligations prescribed or confirmed by this Agreement, of the Escrow Agent will act honestly are limited to those specifically provided in this Agreement and in good faith no other, and will exercise that degree of carethe Escrow Agent shall have no liability under, diligence and skill that a reasonably prudent person would exercise in comparable circumstancesno duty to inquire into the terms and provisions of, any agreement between the parties hereto. The Purchaser Escrow Agent is acting hereunder as an accommodation to the parties hereto. The duties of the Escrow Agent are purely ministerial in nature, and it shall not incur any liability whatsoever, except for its willful misconduct or gross negligence. The Escrow Agent may consult with counsel of its choice (which may be a member of its own firm), and shall not be liable for following the advice of such counsel. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. 4.2 The Holders and the Company Pledgor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep hold harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages damages, fees and expenses (including reasonable attorney's fees and expenses either paid to retained attorneys or amounts representing the fair value of legal services, based on its customary billing rates, rendered to itself) which the Escrow Agent, its successors or assigns may at any time or of times hereafter bear, sustain, suffer or be put unto for or by reason arising out of or on account in connection with the performance of its acting pursuant to obligations in accordance with the provisions of this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. The foregoing indemnities in this Section 4.2 shall survive the resignation or substitution of the Escrow Agent and the termination of this Agreement. 4.3 In case proceedings should hereafter be taken in any court respecting the Subscription ProceedsSecurities, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause Section 4.2 against its costs of such proceedings. . 4.4 The Escrow Agent will have no responsibility in respect of the physical loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. Securities. 4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds Securities as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds Securities or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. . 4.6 The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other item deposited with it or of any signature thereon or for the identity, authority or right of any person executing or depositing the same and shall not have any liability for acting in accordance with any written instructions or certificates given to it hereunder signed by the proper parties. 4.7 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. . 4.8 In the event that the Subscription Proceeds Securities are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the . 4.9 The Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements judgments or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. . 4.10 If protest is made to any action, contemplated by the Escrow Agent receives any written instructions contrary to the instructions contained in under this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds Securities until the lawful determination right to the documents is legally determined by a court of competent jurisdiction or otherwise. 4.11 If written notice of protest is made by any of the issue between Holders or the parties hereto. The Pledgor to the Escrow Agent may resign as to any action contemplated by the Escrow Agent under this Agreement, and such notice sets out reasons for such protest the Escrow Agent will be entitled to continue to hold the Securities until the right to the documents is legally determined by giving not less then a court of competent jurisdiction or otherwise. 4.12 This Agreement may be terminated at any time by and upon the receipt by the Escrow Agent of ten (10) days' written notice thereof to each of termination executed by the Purchaser or the Company. The Purchaser Holders and the Company may terminate Pledgor, directing the distribution of all property then held by the Escrow Agent under and pursuant to this Agreement. In the event that a dispute arises in connection with the release of the Securities, the Escrow Agent shall have the sole and absolute right to resign in accordance with the provisions of this Section 4.12. The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving at least ten (10) days' prior written notice of such resignation to the Holders and Pledgor and specifying a date upon which such resignation shall take effect. Upon receipt of such notice, a successor escrow agent shall jointly be appointed by the Holders and Pledgor, such successor escrow agent to become the Escrow Agent hereunder on the resignation date specified in such notice. If no successor Escrow Agent is appointed prior to the date specified, the Escrow Agent shall have the right at any time to deposit the Securities with a court of competent jurisdiction, as specified in Section 6.5 hereof, and the Escrow Agent shall have no further obligation with respect thereto. The Holders and Pledgor, acting jointly, may at any time substitute a new escrow agent by giving ten (10) days' notice thereof to the Escrow Agent then acting and paying all fees and expenses of such Escrow Agent. In the alternative, in the event of a notice of termination executed by each of them not less than ten (10) days prior dispute in relation to the proposed date release of termination. The resignation or termination of the Securities, the Escrow Agent will be effective may resign fifteen (15) days after giving written notice of such resignation to the parties hereto and depositing the Securities with an appropriate court, as specified in Section 6.5 hereof, and the Escrow Agent will cease to be bound by shall have no further obligation with respect hereto or under this Agreement, in any manner. This Agreement on the date that is ten (10) days after the date of receipt shall automatically terminate if and when all of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to Securities shall have been distributed by the Escrow Agent will survive in accordance with the termination terms of this Agreement or the resignation or termination of the Escrow Agent. Agreement. 4.13 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company Pledgor and all of the Purchaser Holders jointly. 4.14 If any dispute should arise with respect to the ownership or right of possession of the Securities, or should the Escrow Agent, in its sole judgement, receive conflicting instructions with respect to the instructions contained in this Agreement or to any distribution of the Securities, the Escrow Agent is authorized and directed to retain in its possession, without liability to anyone, all or any portion of the Securities until such dispute shall have been settled either by agreement of the parties concerned by filing of written directions signed by the Holders and Pledgor to the Escrow Agent or by a final decree, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between any of the Purchaser Holders and the Company Pledgor or between any other persons or between any of them with respect to the Subscription Pledge Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription ProceedsPledged Stock, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds Securities into court court, as specified in Section 6.5 hereof, and such delivery and interpleading will be an effective discharge to the Escrow Agent. 4.15 The Escrow Agent shall be promptly reimbursed, jointly and severally by the Holders and Pledgor, for reasonable expenses incurred by the Escrow Agent in the performance of services pursuant to this Agreement including, but not limited to, legal fees, including all fees and expenses incurred in connection with its resignation pursuant to Section 4.12. 4.16 The parties hereto hereby expressly agree, acknowledge and consent that the Escrow Agent has served as legal counsel for the Holders and shall be permitted to provide legal counsel to any and all parties to this Agreement, in the future, notwithstanding the agreements set forth herein including, without limitation, any controversy or dispute arising out of this Agreement and waive any claims of conflict of interest relating thereto. 4.17 The Holders and Pledgor shall each bear all of their own fees and expenses incurred by them in resolving any dispute arising under this Agreement. The Holders and Pledgor shall jointly and severally reimburse the Escrow Agent for any costs incurred by the Escrow Agent in connection with any dispute arising under this Agreement. The Holders and Pledgor shall jointly and severally reimburse the Escrow Agent for any costs incurred in the performance of its duties hereunder.

Appears in 1 contract

Samples: Escrow Agreement (Merlin Software Technologies International Inc)

The Escrow Agent. (a) SAFLINK shall pay the Escrow Agent's fee for its ordinary services under this Agreement in accordance with the fee schedule set forth on Exhibit C --------- attached hereto. (b) In exercising the rights, performing any duties and obligations prescribed or confirmed by under this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will shall not be obliged to defend any such action liable for damages, losses, or submit its rights to expenses, except for negligence or willful misconduct on the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs part of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may shall not incur any such liability for (i) any act on or failure to act made or omitted in good faith, or (ii) any action taken or omitted in reliance upon any instrument, including any written statement or affidavit provided for in this Agreement that such agent shall in good faith believe to be genuine, nor will the advice of counsel but will not Escrow Agent be liable or responsible for acting forgeries, fraud, impersonations, or failing to determining the scope of any representative authority. In addition, the Escrow Agent may consult with legal counsel in connection with its duties under this Agreement and shall be fully protected in any act on taken, suffered, or permitted by it in good faith in accordance with the advice of counsel. The Escrow Agent will is not be bound in responsible for determining and verifying the authority of any way by such person acting or purporting to act on behalf of any contract party to this Agreement. (c) If any controversy arises between the parties hereto whether to this Agreement, or not it has notice thereof or with any other party, concerning the subject matter of this Agreement, its terms and conditions and or conditions, the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon determine the sufficiency controversy or to take any action regarding it. The Escrow Agent may hold the Escrow Fund and may wait for settlement of any of the Subscription Proceeds such controversy by final appropriate legal proceedings or to ascertain whether or not the person or persons who have executedother means as, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with in the Escrow Agent's discretion, may be required, despite what may be set forth elsewhere in this Agreement. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agentevent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto for interest or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacateddamage. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this AgreementFurthermore, the Escrow Agent may continue at its option, file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves. The Escrow Agent is authorized to deposit with the clerk of the court the entire Escrow Fund, except for such part of the Escrow Fund as shall reimburse the Escrow Agent for all costs, expenses, charges and reasonable attorney fees incurred by the Escrow Agent due to the interpleader action and which the parties hereby jointly and severally agree to pay. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liabilities imposed by the terms of this Agreement, except for obligations or liabilities arising by reason of the prior negligence or willful misconduct on the part of the Escrow Agent. (d) Jotter and SAFLINK shall jointly and severally indemnify the Escrow Agent for, and to hold it harmless against any loss, liability or expense arising out of or in connection with this Agreement and carrying out its duties hereunder, including the Subscription Proceeds until costs and expenses of defending itself against any claim of liability, except in those cases where the lawful determination Escrow Agent has been guilty of gross negligence or willful misconduct. Anything in this agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the issue between likelihood of such loss or damage and regardless of the parties hereto. form of action. (e) The Escrow Agent may resign as Escrow Agent by at any time upon giving not less then ten at least thirty (1030) days' written notice thereof to each the parties; provided, however, that no such -------- resignation shall become effective until the appointment of a successor escrow agent which shall be accomplished as follows: The parties shall use their best efforts to mutually agree on a successor escrow agent within thirty (30) days after receiving such notice. If the Purchaser or the Company. The Purchaser and the Company may terminate parties fail to agree upon a successor escrow agent within such time, the Escrow Agent shall have the right to appoint a successor escrow agent authorized to do business in the State of Washington and having at least $50,000,000 in assets. The successor escrow agent shall execute and deliver an instrument accepting such appointment, and it shall, without further acts, be vested with all the estates, properties, rights, powers and duties of the predecessor Escrow Agent as if originally named as the Escrow Agent. Upon such appointment, the predecessor Escrow Agent shall be discharged from any further duties and liability under this Agreement, except for obligations or liabilities arising by giving reason of the prior negligence or willful misconduct on the part of the Escrow Agent. (f) Any company into which the Escrow Agent may be merged or with which it may be consolidated, or any company to which the Escrow Agent may transfer all or substantially all of its escrow business, shall be the successor to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to and shall be vested with all the proposed date of termination. The resignation or termination rights, powers and duties of the predecessor Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as if originally named as the Escrow Agent, without the Purchaser and execution or filing of any paper or any further act on the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination part of this Agreement or the resignation or termination any of the Escrow Agent. Notwithstanding parties hereto, anything herein to the contrarycontrary notwithstanding, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything so long as such successor is authorized to the contrary contained herein, do business in the event State of any dispute arising between the Purchaser Washington and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may has at least $50,000,000 in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentassets.

Appears in 1 contract

Samples: Escrow Agreement (Saflink Corp)

The Escrow Agent. In exercising Commerce Bank/North is hereby appointed by the rightsAuthority under the direction of the Borrower to serve as Escrow Agent hereunder. The Escrow Agent, shall act on behalf of the Authority under this Bond Agreement as specifically provided for herein only insofar as its duties are expressly set forth and obligations prescribed or confirmed by this Agreement, shall not have any implied duties but may exercise such additional powers as are reasonably incidental thereto. Neither the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at nor any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant officers, directors or employees shall be liable for any action taken or omitted to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken by it hereunder or in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action connection herewith except for its or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingstheir own gross negligence or willful misconduct. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the shall not be under a duty to examine or pass upon the validity, effectiveness or genuineness of any Loan Document or any direction, report, affidavit, certificate, opinion or other instrument, document or agreement related thereto, and shall be entitled to assume that the same are valid, effective, genuine and what they purport to be. The Escrow Agent may consult with legal counsel selected by it, and any action taken or suffered by it in accordance with the opinion of such counsel shall be full justification and protection to it. The Escrow Agent shall have the same rights and powers as any other bank or lender and may exercise such care the same as though it were not the Escrow Agent; and it may accept deposits from, lend money to and generally engage in any kind of business with the safekeeping thereof Borrower as though it would exercise if were not the Subscription Proceeds belonged to Escrow Agent. The Borrower shall be responsible for the fees and costs of the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for acting or failing obliged to act on the advice of counsel. The Escrow Agent will not be bound or perform hereunder or to incur any expenses in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms connection herewith unless and conditions and the only duty, liability and responsibility of until the Escrow Agent will be to hold has been properly indemnified by the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient Borrower for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting actions to be such a notice, demand taken or protest is served upon the Escrow Agent expenses to be incurred in any manner sufficient to bring it to connection with its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign duties as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agenthereunder.

Appears in 1 contract

Samples: Bond Agreement (NeoStem, Inc.)

The Escrow Agent. In exercising the rights, (a) The Escrow Agent shall have no duties or obligations hereunder except those specifically set forth herein and such duties and obligations prescribed or confirmed shall be determined solely by the express provisions of this Agreement and no duties shall be implied. The Escrow Agent shall have no liability under and no duty to inquire as to the provisions of any agreement other than this Agreement. In connection with its duties hereunder, the Escrow Agent will act honestly shall be protected in acting or refraining from acting upon any written notice, request, consent, certificate, order, affidavit, letter, telegram or other document furnished to it hereunder and in good faith reasonably believed by it to be genuine and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and to have been signed or sent by the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successorsproper party or parties, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof for anything it may do or refrain from doing in connection with its duties hereunder, except to the extent that a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to the parties. In the administration of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this AgreementAccount, the Escrow Agent may continue execute any of its powers and perform its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to hold be selected and retained by it. (b) In the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate event the Escrow Agent by giving shall be uncertain as to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation its duties or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by rights under this Agreement on or shall receive any instruction, claim or demand that, in the date that is ten (10) days after the date opinion of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, is in conflict with the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination provisions of this Agreement or the resignation or termination (any of the foregoing, an “Escrow Agent. Notwithstanding anything herein to the contraryAgent Dispute”), the Escrow Agent may act upon shall be entitled to refrain from taking any written instructions given action with respect to such Escrow Agent Dispute and its sole obligation shall be to keep safely all property held under the terms of this Agreement until it shall be directed otherwise by the Company a final and the Purchaser jointlynonappealable order of a court of competent jurisdiction or by an instrument signed by both Parties. Notwithstanding anything to the contrary contained herein, in In the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription ProceedsEscrow Agent Dispute, the Escrow Agent may shall be entitled to petition a court of competent jurisdiction in its sole discretion deliver the State of Delaware to resolve such Escrow Agent Dispute, and interplead each of the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge Parties consent to the jurisdiction of any such court with respect to any such Escrow AgentAgent Dispute. (c) The Escrow Agent shall be reimbursed for all reasonable fees and out-of pocket expenses, including without limitation those fees set forth on Schedule IV hereto and reasonable outside counsel fees and other out-of-pocket disbursements, incurred by the Escrow Agent in connection with the performance of its duties and obligations under this Agreement (all

Appears in 1 contract

Samples: Merger Agreement (Perrigo Co)

The Escrow Agent. In exercising (a) The Escrow Agent hereunder shall be Xxxx Marks & Xxxxx LLP as escrow agent. If the rightsClosing takes place in accordance with the terms hereof, duties the Deposit shall be paid to Seller and obligations prescribed or confirmed by this AgreementPurchaser shall receive credit for the entire amount thereof. If for any reason the Closing does not occur in accordance with the terms hereof and either party makes a written demand upon the Escrow Agent for payment of the Deposit, the Escrow Agent will act honestly and in good faith and will exercise that degree shall give written notice to the other party of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstancessuch demand. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify If the Escrow Agent, its successors, and assigns, Agent does not receive a written objection from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors other party to the proposed payment or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account delivery within seven (7) business days after the giving of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceedssuch notice, the Escrow Agent will is hereby authorized to make such delivery to the party requesting payment. If the Escrow Agent receives written objection within such seven (7) day period with respect to a request to deliver the Deposit, the Escrow Agent shall continue to hold the same until otherwise directed by joint written instructions from the parties to this Contract or a final judgment of court of competent jurisdiction, except as otherwise provided below. In the event of a good faith dispute as to the payment of the Deposit and subsequently legal proceedings are commenced, if the party which objected to the payment of the Deposit is the losing party, then such party shall be responsible to pay or reimburse the prevailing party (after judicial determination) for all costs and expenses incurred in connection with such proceeding. (b) The parties acknowledge that the Escrow Agent is holding the Deposit solely as a stakeholder at their request and for their convenience, that the Escrow Agent acting in such capacity shall not be obliged deemed to defend be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties for any such action act or submit omission on its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against part unless taken in, or resulting from, its costs of such proceedings. willful misconduct, or gross negligence. (c) The Escrow Agent will have no responsibility shall not be bound by any modification, amendment, termination, cancellation or rescission of this Contract unless the same shall be in respect of loss writing and signed by all of the Subscription Proceeds except the duty other parties hereto and, if its duties as Escrow Agent hereunder are affected thereby, unless it shall have given its prior written consent thereto. (d) The Escrow Agent shall be entitled to exercise such care rely conclusively and shall be protected in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to acting upon any order, judgment, certification, demand, notice, instrument, opinion or written advice of counsel (including counsel chosen by the Escrow Agent) or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act on in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice to make any statement or execute any document in connection with the advice provisions hereof has been duly authorized to do so. (e) Without limiting the generality of counsel but the foregoing, it is agreed and understood that Escrow Agent may act upon its receipt of a Termination Notice (as hereinafter defined) without any obligation whatsoever to inquire as to the factual circumstances under which the same was delivered to it. (f) The Escrow Agent at any time may: (i) be discharged by the giving to it of a written notice of termination signed by Seller and Purchaser (a "TERMINATION NOTICE") or (ii) resign hereunder by giving written notice of its resignation to the other parties hereto, in either case such discharge or resignation notice to be given at least ten (10) business days prior to the date specified for such discharge or resignation to take effect, and upon the effective date thereof, the Deposit, together with all interest accrued thereon, then held by the Escrow Agent hereunder shall be delivered by it to any title company licensed to do business in New York State or a successor law firm maintaining an Escrow Account in New York State as may be designated in writing by Seller and subject to the consent of Purchaser which consent will not be responsible for acting unreasonably withheld or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only dutydelayed, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for whereupon all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent's obligations hereunder shall cease and terminate. In If no event will such person shall have been designated by such date, the withdrawing Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of petition any court of competent jurisdictionjurisdiction located in the State of New York for the appointment of a successor Escrow Agent; provided, and however, Escrow Agent shall continue to hold the Deposit, together with all interest accrued thereon, in accordance herewith until a successor is appointed. Such court may thereupon, after such notice, if any, as it is hereby authorized to comply with and obey such ordersmay deem proper, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacatedappoint a successor Escrow Agent. If the no new Escrow Agent receives any written instructions contrary to the instructions contained in this Agreementis so appointed within (30) days following such petition, the Escrow Agent may continue deposit the Deposit, together with all interest accrued thereon, with any court it reasonably deems appropriate, whereupon it shall be relieved of all further obligations hereunder. Any successor Escrow Agent appointed as provided in this Section shall execute and deliver to hold the Subscription Proceeds until parties hereto an instrument in writing accepting such appointment hereunder, and thereupon the lawful determination withdrawal of the issue between predecessor Escrow Agent shall become effective and all obligations of the parties heretopredecessor Escrow Agent shall cease and terminate. The sole responsibility of the predecessor Escrow Agent may resign shall be to deliver the Deposit, together with all interest accrued thereon, to such successor Escrow Agent. For all purposes of this Escrow Agreement, the term "ESCROW AGENT " shall mean and, subject to the provisions of this Section, shall also include its successors and assigns as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agenthereunder.

Appears in 1 contract

Samples: Contract of Sale (NCC Industries Inc)

The Escrow Agent. In exercising the rights, 5.1 The duties and obligations prescribed of the Escrow Agent in respect of the Escrow Cash shall be determined solely by the express provisions of this Agreement. The Escrow Agent shall have no knowledge of the terms and provisions of any separate agreement including the Related Agreement and shall have no responsibility for compliance by the Depositor or confirmed the Beneficiary with the terms of the Related Agreement, or any other agreement, or for ensuring that the terms of any such agreement are reflected in this Agreement. 5.2 The Escrow Agent shall hold the Escrow Cash in accordance with this Agreement and, in particular, (but without limitation) shall not release any part of the Escrow Cash, except as provided in this Agreement. 5.3 The Escrow Agent shall be under no duty to take or omit to take any action with respect to the holding of, or any other matter relating to, the Escrow Cash except in accordance with this Agreement. 5.4 The Escrow Agent shall be under no duty to make recommendations to or advise the Depositor and/or the Beneficiary in connection with the Escrow Cash and the Escrow Agent shall hold Escrow Cash where instructed to do so by the Depositor or the Beneficiary in accordance with this Agreement on the basis that the Escrow Agent shall not be responsible for advising the Depositor and/or the Beneficiary as to the merits of any particular manner of holding Escrow Cash. 5.5 In the event of a change in any applicable law or regulatory requirement that affects the Escrow Agent’s performance of its obligations under this Agreement, the Escrow Agent will act honestly may, with the prior written agreement of the other Parties, such agreement shall not be unreasonably withheld consult with legal, tax, accounting, and regulatory counsel of its own choice and shall have full and complete authorisation and protection for any action taken or omitted to be taken by it under this Agreement in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith accordance with the terms hereofopinion of legal, tax, accounting, or regulatory counsel. In case proceedings should hereafter be taken in Subject to any court respecting the Subscription Proceeds, applicable regulation and/or a formal request of any Party the Escrow Agent will not be obliged to defend any provide such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of Party with such proceedings. information obtained. 5.6 The Escrow Agent will have no responsibility does not make any warranties, representations or other statements whatsoever in respect of: (a) the ability of loss either the Depositor or the Beneficiary (as the case may be) to transfer full legal and beneficial ownership of the Subscription Proceeds except Escrow Cash free from all liens, claims, charges and encumbrances; or (b) the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged enforceability of any rights or interests relating to the Escrow Agent. The Cash, or whether it is appropriate, necessary or desirable to take or omit to take any action (including, without limitation, any form of registration) in relation to the Escrow Agent may act on Cash; or (c) any legal, tax, accounting, regulatory or investment issues arising in connection with the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility holding of the Escrow Agent will Cash, and these matters shall be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any exclusive concern of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser Depositor and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in Beneficiary. 5.7 In the event of any dispute arising between the Purchaser and the Company or between conflicting claims by any other person or persons or between any of them with respect to the Subscription Agreement, terms of this Agreement and if the Escrow Agent is uncertain as to its duties or any matters arising thereto, or with respect to the Subscription Proceedsrights hereunder, the Escrow Agent may shall be entitled to apply to a court of law to determine the rights of such persons and meanwhile at its option to refuse to comply with any and all claims, demands or instructions with respect to such Escrow Cash or any obligations hereunder so long as such dispute or conflict shall continue. The Escrow Agent shall not be liable or become liable in any way for its sole discretion deliver refusal to comply with such conflicting claims, or demands or instructions. The Escrow Agent shall be entitled to refuse to act until such conflicting or adverse claims or demands shall have been: (i) finally determined by a non-appealable court order in a court of competent jurisdiction; or (ii) resolved by both the Beneficiary and interplead the Subscription Proceeds into court Depositor executing and such delivery delivering to Escrow Agent joint written instructions regarding the settlement of the dispute. 5.8 The Depositor and interpleading will be an effective discharge to Beneficiary hereby authorise the Escrow AgentAgent to act hereunder notwithstanding that: (i) the Escrow Agent or any of its divisions, branches or affiliates may have a material interest in the transaction or that circumstances are such that the Escrow Agent may have a potential conflict of duty or interest including the fact that the Escrow Agent or any of its affiliates may: (a) provide brokerage or other services to other customers; (b) act in the same transaction as agent for more than one customer; (c) have a material interest in the relevant transaction; or (d) earn profits from any of the activities listed herein; or (ii) the Escrow Agent or any of its divisions, branches or affiliates may be in possession of information tending to show that the instructions received may not be in the best interests of the Depositor or Beneficiary, as the case may be, and the Depositor and Beneficiary agree that the Escrow Agent is not under any duty to disclose any such information.

Appears in 1 contract

Samples: Contract for the Provision of Mobile Drilling Rig Services (Hyperdynamics Corp)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, To induce the Escrow Agent will to act honestly under this ---------------- Agreement, it is further agreed by Bankrate and in good faith and will exercise that REALIC that: (A) The Escrow Agent shall not be under any duty to give the Executed Agreements, the Escrowed Funds or the Escrowed Note held by it under this Agreement any greater degree of care, diligence care than it gives its own similar property and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time shall not be required to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at invest any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to funds held under this Agreement or anything except as directed in any manner relating thereto or by reason this Agreement; (B) This Agreement expressly sets forth all the duties of the Escrow Agent's compliance in good faith Agent with the terms hereofrespect to any and all matters pertinent to this Agreement. In case proceedings should hereafter No implied duties or obligations shall be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 read into this Agreement against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties to this Agreement except this Agreement; (C) The Escrow Agent shall have no liability with regard to any duty under this Agreement nor be responsible for the loss of the Executed Agreements, the Escrowed Funds or the Escrowed Note except in the event of willful and intentional misconduct on the part of the Escrow Agent. Bankrate and REALIC shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement; (D) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it pursuant to this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act on in reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; (E) The Escrow Agent may act pursuant to the advice of counsel but will with respect to any matter relating to this Agreement, and shall not be responsible liable for acting any action taken or failing omitted in accordance with such advice; (F) The Escrow Agent does not have any interest in the Executed Agreements, the Escrowed Funds or the Escrowed Note deposited under this Agreement and is serving as escrow agent only; (G) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated in this Agreement as a means to act on resolve disputes, and may rely without any liability upon the advice contents of such writing; (H) Notwithstanding its duties pursuant to this Agreement, the Escrow Agent shall have the right to represent Bankrate as legal counsel, including, without limitation, in connection with any dispute arising under this Agreement. (I) Notwithstanding the provisions of Section 3 of this Agreement, in the event of any disagreement among or between Bankrate and REALIC resulting in adverse claims or demands being made in connection with the Executed Agreements, the Escrowed Funds or the Escrowed Note, or in the event that the Escrow Agent is in doubt as to what action it should take under this Agreement, the parties agree and acknowledge that the Escrow Agent shall have the right to (i) interplead all or any portion of the Escrowed Funds with the Circuit Court in and for Palm Beach County, Florida; (ii) seek a final and non-appealable order of a court of competent jurisdiction directing delivery of the Executed Agreements, the Escrowed Funds or the Escrowed Note; or (iii) obtain a written agreement executed by Bankrate and REALIC directing delivery of the Executed Agreements, the Escrowed Funds or the Escrowed Note, in which event the Escrow Agent shall disburse the Executed Agreements, the Escrowed Funds or the Escrowed Note in accordance with such order or agreement. Any court order resulting from or referred to by any action taken pursuant to clauses (i) or (ii) of this Section 7(I) shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said court order is final and non-appealable. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms shall act on such court order and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. legal opinion without further question; and (J) The Escrow Agent will not be required to pass upon the sufficiency of may resign from its position as escrow agent at any of the Subscription Proceeds time, for any reason or to ascertain whether or not the person or persons who have executedfor no reason, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a without prior notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. ; and (K) Except as herein may otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained provided in this Agreement, the Escrow Agent may continue Agent's obligations pursuant to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on shall terminate upon the date that is ten (10) days after the date completion of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted disbursements pursuant to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow AgentSection 3 above.

Appears in 1 contract

Samples: Termination Agreement and General Release (Bankrate Inc)

The Escrow Agent. In exercising the rights(a) The duties, duties responsibilities and obligations prescribed or confirmed by this Agreement, of the Escrow Agent will act honestly shall be limited to those expressly set forth herein and in good faith and will exercise that degree of careno duties, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and responsibilities or obligations shall be inferred or implied against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will (in its capacity as such) shall not be responsible for acting subject to, nor required to comply with, any other agreement to which the Company is a party, even though reference thereto may be made herein, or failing to act on comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the advice of counselCompany; provided that nothing herein shall affect the Trustee’s rights and obligations under the Indenture. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will shall not be required to pass upon expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the sufficiency performance of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or its duties hereunder. (b) If at any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as time the Escrow Agent is concerned that the said documents are deposited served with it as herein specified by the parties executing this Agreement with any judicial or administrative order, judgment, decree or writ which in any way affects the Escrow Agent. In no event will Property (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow AgentProperty), the Escrow Agent may, is authorized to comply therewith in any reasonable manner advised by its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If legal counsel; the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will shall not be liable to any of the parties hereto or to any other personperson or entity even though such order, firm judgment, decree or corporation writ may be subsequently modified or vacated or otherwise determined to have been without legal force or effect, except to the extent that any such order, judgment, decree or writ or the effect of any interpretation the foregoing is due to the Escrow Agent’s gross negligence or willful misconduct. (c) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any written instruction, notice, demand, certificate or document from the Company, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, or (iii) for an amount in excess of the Escrowed Funds. (d) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company, as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith reliance upon any advice from such counsel. (e) The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or other wire or communication facility). (f) The Escrow Agent shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder that is believed by the Escrow Agent in good faith to be genuine and to be signed or presented by the proper person without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (g) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. (h) The Escrow Agent shall not be under any duty to give the Escrow Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder, except as specifically directed by the Company in writing. Uninvested funds held hereunder shall not earn or accrue interest. (i) When the Escrow Agent acts on any information, instructions or communications (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by facsimile, email or other form of electronic or data transmission, that are believed by the Escrow Agent in good faith to be genuine and to be signed or presented by the proper person, the Escrow Agent, absent gross negligence or willful misconduct, shall not be responsible or liable in the event such compliancecommunication is not an authorized or authentic communication of the Company or is not in the form the Company sent or intended to send (whether due to fraud, notwithstanding that such writsdistortion or otherwise). (j) In the event of any ambiguity or uncertainty hereunder or in any notice, orders, judgments instruction or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedother communication received by the Escrow Agent hereunder, the Escrow Agent is authorized and directed to disregard may, in its sole discretion discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company, which eliminates such ambiguity or uncertainty. (k) In the event of any dispute between or conflicting claims among the Company and any other person or entity with respect to any Escrow Property, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all notices claims, demands or instructions with respect to such Escrow Property so long as such dispute or conflict shall continue, and warnings which may the Escrow Agent shall not be given or become liable in any way to it the Company for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until, in its sole discretion, either (i) such conflicting or adverse claims or demands shall have been determined by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the a final order, judgment or decree of any a court of competent jurisdiction, and it is hereby authorized jurisdiction or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, or (ii) the Escrow Agent may continue shall have received security or an indemnity satisfactory to it sufficient to hold the Subscription Proceeds until the lawful determination it harmless from and against any and all losses which it may incur by reason of the issue between the parties heretoso acting. The Escrow Agent may resign as shall act on such court order without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. (l) The Escrow Agent does not have any interest in the Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Purchaser and the Company may terminate shall pay or reimburse the Escrow Agent by giving upon request for any transfer taxes or other taxes relating to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company will be effective and provide the Escrow Agent will cease with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent shall only be responsible for income reporting with respect to income earned on the Escrow Property (to be bound attributed to the Company), if any, and will not be responsible for any other reporting. (m) The Escrow Agent shall provide to the Company monthly statements identifying transactions, transfers or holdings of Escrow Property and each such statement shall be deemed to be correct and final upon receipt thereof by this Agreement on the date that Company unless the Escrow Agent is ten notified in writing, by the Company, to the contrary within thirty (1030) days after Business Days of the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentstatement.

Appears in 1 contract

Samples: Escrow Agreement (KLX Inc.)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, To induce the Escrow Agent will to act honestly hereunder, it is further agreed by Buyer and in good faith and will exercise that the Representative that: (a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care, diligence care than it gives its own similar property and skill that a reasonably prudent person would exercise shall not be required to invest any Escrowed Property held hereunder except as directed in comparable circumstancesthis Agreement. The Purchaser and Uninvested Escrowed Property held hereunder shall not earn or accrue interest. (b) This Agreement expressly sets forth all the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason duties of the Escrow Agent's compliance in good faith Agent with the terms hereofrespect to any and all matters pertinent hereto. In case proceedings should hereafter No implied duties or obligations shall be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 read into this Agreement against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for acting or failing to act on bound by the advice provisions of counsel. any agreement among the other parties hereto except this Agreement. (c) The Escrow Agent will shall not be bound in any way by any contract between the parties hereto whether liable, except for its own gross negligence or not it has notice thereof willful misconduct and, except with respect to claims based upon such gross negligence or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as willful misconduct that are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by successfully asserted against the Escrow Agent, Buyer and the Representative shall jointly and severally indemnify and hold harmless the Escrow Agent may(and any successor escrow agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in its sole discretion, obey and comply connection with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to Agreement. Without limiting the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedforegoing, the Escrow Agent is authorized and directed to disregard shall in no event be liable in connection with its sole discretion investment or reinvestment of any and all notices and warnings which may be given to cash held by it by hereunder in good faith, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the parties hereto Escrowed Property or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree loss of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof interest incident to any of the parties hereto or to such delays. This Section 10(c) shall survive notwithstanding any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. (d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Notwithstanding anything herein The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (e) The Escrow Agent may act pursuant to the contraryadvice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice. (f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. Buyer and the Representative shall on a 50%/50% basis pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Atrium Indemnity Account shall be subject to withholding regulations then in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 10(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent. (g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it. (h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from taking any action with respect to any securities or other property deposited hereunder. (i) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to Buyer and the Representative on the appointment of such successor escrow agent. If, at the Resignation Date, the Escrow Agent may act upon any has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property until receipt of a designation of successor escrow agent or a joint written instructions given disposition instruction by the Company and the Purchaser jointly. Notwithstanding anything other parties hereto or a Final Determination to the contrary contained herein, in effect that the Escrow Agent may transfer the Escrowed Property to another party without incurring liability under this Agreement. (j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof. (k) In the event of any dispute arising disagreement between the Purchaser Buyer and the Company Securityholders resulting in adverse claims or between any other persons or between any of them demands being made in connection with respect to the Subscription Agreement, this Agreement or any matters arising theretoEscrowed Property, or with respect in the event that the Escrow Agent in good faith is in doubt as to the Subscription Proceedswhat action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a Final Determination (accompanied by the opinion of counsel referred to in Section 3) directing delivery of the Escrowed Property or (ii) a written agreement executed by Buyer and the Representative directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question. (l) The compensation of the Escrow Agent (as payment in full except for the establishment, if necessary, of the Pending Claims Account) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 paid by Buyer and the Securityholders on a 50%/50% basis at the time of execution of this Agreement, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel) not to exceed $1,000 absent any litigation or other dispute arising under this Agreement. All fees and expenses of the Escrow Agent hereunder shall be paid by Buyer and the Securityholders on a 50%/50% basis. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may in be taken from any property held by the Escrow Agent hereunder. The Escrow Agent's fee may be adjusted from time to time to conform to its sole discretion deliver then current guidelines. If the Escrow Agent establishes the Pending Claims Account under Section 5 of this Agreement, Buyer and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge Securityholders shall pay the amount of $1,500 annually on a 50%/50% basis to the Escrow Agent for the set-up and administration of such Pending Claims Account. (m) No prospectuses, press releases, reports and promotional material, or other similar materials which mention in any language the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. (n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depositary Trust Company and the Federal Reserve Book Entry System.

Appears in 1 contract

Samples: Indemnification Escrow Agreement (Atrium Companies Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. 6.1 Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Shares/Escrow Funds as directed by a writing jointly signed by the DSA Representative and SM&A. The reasonable fees and expenses of the Escrow Agent (as set forth on the fee schedule attached hereto as Schedule 3) in connection with its performance of this Agreement shall be borne by SM&A. The Escrow Agent shall not be liable for any act or omission to act under this Agreement, including any and all claims made against the Escrow Agent as a result of its holding the Escrow Shares/Escrow Funds in its own name, except for its own gross negligence or willful misconduct. The Escrow Agent shall not be liable for, and the Shareholders (only to the extent of their proportionate share of the Escrow Shares/Escrow Funds) and SM&A shall jointly and severally indemnify the Escrow Agent against, any losses or claims (including reasonable out-of-pocket expenses) arising out of, any action taken or omitted in good faith hereunder or upon the advice of counsel. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Agreement. The Escrow Agent may act upon any written instructions given instrument or signature believed by the Company it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Agreement and applicable laws, and the Purchaser jointly. Notwithstanding anything Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including, but not limited to, the Merger Agreement. 6.2 The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the contrary contained hereinparties hereto, in at the addresses set forth herein or at such other address as the parties shall provide, at least 30 days prior to the date specified for such resignation to take effect. In such event of any dispute arising between the Purchaser SM&A and the Company or between any other persons or between any DSA Representative shall by agreement appoint a successor escrow agent within said 30 days; if SM&A and the DSA Representative do not agree upon the selection of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceedsa successor escrow agent within such period, the Escrow Agent may in its sole discretion deliver and interplead appoint a successor escrow agent. Upon the Subscription Proceeds into court and effective date of such delivery and interpleading will be an effective discharge to resignation, the Escrow AgentShares and the Escrow Funds, together with all other property then held by the Escrow Agent hereunder, shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by SM&A and the DSA Representative. 6.3 In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in any court of competent jurisdiction and request that such court determine the respective rights of such parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to either party as a consequence of any such claims or demands. The reasonable fees and costs incurred by the Escrow Agent in interpleading said parties shall be borne equally by SM&A and the Shareholders as a group. 6.4 The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto.

Appears in 1 contract

Samples: Escrow Agreement (Sm&a Corp)

The Escrow Agent. 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. . 4.2 The Purchaser Company and the Company Investor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's ’s compliance in good faith with the terms hereof. . 4.3 In case proceedings should hereafter be taken in any court respecting the Subscription ProceedsShares and Warrants, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. . 4.4 The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds Shares and Warrants except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds Shares and Warrants belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. . 4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds Shares and Warrants as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. . 4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. . 4.7 In the event that the Subscription Proceeds Shares and Warrants are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such D/BIP/676666.1 compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. . 4.8 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. . 4.9 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds Shares and Warrants until the lawful determination of the issue between the parties hereto. . 4.10 If protest is made to any action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may continue to hold the Shares and Warrants until the right to the Shares and Warrants is legally determined by a court of competent jurisdiction or otherwise. 4.11 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser Company or the CompanyInvestor. The Purchaser Company and the Company Investor may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser Company and the Company Investor may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. . 4.12 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser Investor jointly. . 4.13 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser Company and the Company Investor or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription ProceedsShares and Warrants, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds Shares and Warrants into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.

Appears in 1 contract

Samples: Escrow Agreement (Pluristem Life Systems Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the (a) The Escrow Agent will act honestly undertakes to perform only such duties as are expressly set forth herein. (b) The Escrow Agent may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (c) The Escrow Agent shall not be liable for any action taken by it in good faith and will exercise reasonably believed by it to be authorized or within the rights or powers conferred upon it by this Escrow Agreement, and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. (d) In the event that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow AgentAgent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its successorsopinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and assigns, from and against its sole obligation shall be to keep safely all loss, costs, charges, suits, demands, claims, damages and expenses which property held in escrow until it shall be directed otherwise in writing by all of the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for other parties hereto or by reason a final order or on account judgment of its acting pursuant to this a court of competent jurisdiction. (f) This Escrow Agreement or anything in any manner relating thereto or by reason expressly sets forth all the duties of the Escrow Agent's compliance in good faith Agent with the terms hereofrespect to any and all matters pertinent hereto. In case proceedings should hereafter No implied duties or obligations shall be taken in any court respecting the Subscription Proceeds, the read into this Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 Agreement against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for acting or failing bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement and shall not be deemed to act on have knowledge of nor responsibility under the advice terms of counselthe Merger Agreement. The Escrow Agent will not shall be bound in under no duty to inquire into or investigate the validity, accuracy or content of any way by any contract between such document. (g) Hubbxxx xxx the parties hereto whether or not it has notice thereof or Shareholder Representative (on behalf of its terms the Shareholders) hereby agree, jointly and conditions severally, to indemnify and the only duty, liability and responsibility of hold harmless the Escrow Agent will be to hold the Subscription Proceeds as herein directed against any and to pay all costs, losses, claims, damages, liabilities, expenses, including reasonable costs of investigation, court costs, and deliver the same to such persons attorneys' fees and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executeddisbursements, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that which may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served imposed upon the Escrow Agent in connection with its acceptance of appointment as Escrow Agent hereunder, including any manner sufficient to bring it to its attention. In litigation arising from this Agreement or involving the event that subject matter hereof, except in the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery case of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent's own willful default or gross negligence; 50% of any such amount shall be payable by Hubbxxx xxx 50% shall be payable by the Shareholder Representative on behalf of the Shareholders. Anything in this agreement to the contrary notwithstanding, in no event shall the Escrow Agent maybe liable for special, in its sole discretionindirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If even if the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any has been advised of the parties hereto or to any other person, firm or corporation by reason likelihood of such compliance, notwithstanding that such writs, orders, judgments loss or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized damage and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any regardless of the parties hereto or by any other person, firm, association or corporation. It willform of action; provided, however, obey that this sentence shall not apply in the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of gross negligence or bad faith on the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination part of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event performance of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the duties as Escrow Agent.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Hubbell Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. 6.1 Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Funds as directed by a writing jointly signed by SM&A and the Shareholder Representative. The reasonable fees and expenses of the Escrow Agent (as set forth on the fee schedule attached hereto as Schedule 6.1) in connection with its performance of ------------ this Agreement shall be borne by SM&A. The Escrow Agent shall not be liable for any act or omission to act under this Agreement, including any and all claims made against the Escrow Agent as a result of its holding the Escrow Funds in its own name, except for its own negligence or willful misconduct, and SM&A and the Shareholders shall jointly and severally indemnify, defend and hold harmless Escrow Agent and its affiliates, agents, employees, contractors, successors and assigns from and against any and all claims, damages, demands, liens, claims of lien, losses, actions or liability of any kind or nature whatsoever, which Escrow Agent may sustain, incur or be subjected to or which may be imposed on Escrow Agent including, without limitation, reasonable attorneys' fees and litigation costs, to the extent they arise out of or are connected with this Escrow Agreement, unless arising from the negligence or willful misconduct of Escrow Agent. The provisions of this indemnification shall survive the termination of this Escrow Agreement. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Agreement. The Escrow Agent may act upon any written instructions given instrument or signature believed by the Company it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Agreement and applicable laws, and the Purchaser jointlyEscrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including, but not limited to, the Purchase Agreement. Notwithstanding anything to the contrary contained herein, in In the event of any a dispute arising between out of or in connection with this Escrow Agreement involving the Purchaser Escrow Agent, all legal representation required to defend the Escrow Agent shall be provided at the joint and several expense of SM&A and the Company or between Shareholders. 6.2 The Escrow Agent shall have the right at any other persons or between any time to resign hereunder by giving written notice of them with respect its resignation to the Subscription Agreementparties hereto, this Agreement at the addresses set forth herein or any matters arising theretoat such other address as the parties shall provide, or with respect at least 30 days prior to the Subscription Proceedsdate specified for such resignation to take effect. In addition, the Escrow Agent shall have the right to resign hereunder immediately by written notice to the parties hereto if the fees of Escrow Agent are not paid when due. In such event, SM&A and the Shareholder Representative shall by agreement appoint a successor escrow agent within said 30 days; if SM&A and the Shareholder Representative do not agree upon the selection of a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrow Funds together with all other property, if any, then held by the Escrow Agent hereunder, shall be deposited with such successor escrow agent or as otherwise shall be designated in its sole discretion deliver writing by SM&A and interplead the Subscription Proceeds into court Shareholder Representative. In addition, the Escrow Agent shall have the right to resign hereunder immediately by written notice to the parties hereto if the fees and expenses of Escrow Agent (as set forth on the fee schedule attached hereto as Schedule 6.1) are not paid ------------ when due. The other parties hereto reserve the right to remove the Escrow Agent by joint written notice at any time; provided that such delivery and interpleading will be an effective discharge notice is given to the Escrow AgentAgent at least thirty (30) days prior to the effectiveness of such removal. 6.3 In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in any court of competent jurisdiction and request that such court determine the respective rights of such parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to either party as a consequence of any such claims or demands. The reasonable fees and costs incurred by the Escrow Agent in interpleading said parties shall be borne equally by SM&A and the Shareholders as a group. 6.4 The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto.

Appears in 1 contract

Samples: Escrow Agreement (Sm&a Corp)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10a) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Shares as directed by a writing jointly signed by the Stockholder Representative and Helix. The reasonable fees and expenses of the Escrow Agent in connection with its execution and performance of this Agreement as set forth on Schedule II hereto shall be borne by Helix. The Escrow Agent shall not be liable for any act or failure to act under this Agreement, including any and all claims made against the Escrow Agent as a result of its holding the Escrow Shares in its own name, except for its own gross negligence or willful misconduct. The Escrow Agent shall not be liable for, and Helix and the Stockholders shall agree, jointly and severally, to indemnify and hold harmless the Escrow Agent and its directors, employees, officers, agents, successors and assigns against, any losses or claims (including reasonable out-of-pocket expenses and attorney fees) arising out of any action taken or omitted in good faith hereunder and reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent or reasonably incurred by it in connection with its acceptance of this appointment or performance of its duties hereunder. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Agreement. The Escrow Agent may act upon any written instructions given instrument or signature believed by the Company it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Agreement and applicable law and the Purchaser jointly. Notwithstanding anything Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including without limitation, the Merger Agreement. (b) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the contrary contained hereinparties hereto, in at the event of any dispute arising between addresses set forth herein or at such other address as the Purchaser and the Company or between any other persons or between any of them with respect parties shall provide, at least thirty days prior to the Subscription Agreementdate specified for such resignation to take effect. In such event Helix shall with the approval of the Stockholder Representative, this Agreement or any matters arising theretowhich approval shall not be unreasonably withheld, or with respect to the Subscription Proceedsappoint a successor escrow agent within that thirty-day period; if Helix does not designate a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrow Fund then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in its sole discretion deliver writing by Helix and the Stockholder Representative. (c) In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the other parties hereto, the Escrow Agent shall have the right to interplead the Subscription Proceeds into parties in any Massachusetts court or any court of competent jurisdiction and request that such delivery and interpleading will court determine the respective rights of the parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be an effective discharge released from any obligations or liability to the other parties as a consequence of any such claims or demands. (d) The Escrow AgentAgent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as fiduciary or otherwise in any jurisdiction other than the Commonwealth of Massachusetts. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto.

Appears in 1 contract

Samples: Escrow Agreement (Helix Technology Corp)

The Escrow Agent. In exercising the rightsAny annual fees, duties and obligations prescribed or confirmed by this Agreementother expenses, the due to Escrow Agent will act honestly and in good faith and will exercise that degree connection with its performance of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or shall be paid by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingsPurchaser. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds shall not be liable for any act or omission to act under this Escrow Agreement, except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agentfor its own gross negligence or willful misconduct. The Escrow Agent may act on upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent’s duties shall be determined only with reference to this Escrow Agreement and applicable laws, and the advice Escrow Agent is not charged with knowledge of counsel but will not be responsible for acting or failing to act on the advice of counselany duties or responsibilities in connection with any other document or agreement. The Escrow Agent will not be bound in shall have the right at any way time to resign hereunder by any contract between giving written notice of its resignation to the parties hereto, at least thirty (30) days prior to the date specified for such resignation to take effect. If the parties hereto whether or do not it has notice thereof or of its terms and conditions and the only dutydesignate a successor escrow agent within said third (30) days, liability and responsibility of the Escrow Agent will may appoint another nationally recognized bank or trust company as successor escrow agent. Upon the effective date of such resignation, and provided that the successor escrow agent agrees in writing to be to hold bound by the Subscription Proceeds as herein directed and to pay and deliver the same to such persons terms hereof, all cash and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for payments and all purposes under this Agreement insofar as other property then held by the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it hereunder shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring delivered by it to its attentionsuch successor escrow agent or as otherwise shall be designated in writing by both Seller and Purchaser. In the event that the Subscription Proceeds are attached, garnished Escrow Agent should at any time be confronted with inconsistent or levied upon under any court order, conflicting claims or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act demands by the Escrow Agentparties hereto, the Escrow Agent may, shall have the right to interplead said parties in its sole discretion, obey any court of competent jurisdiction and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any request that such writs, order, judgment or decrees it will not be liable to any court determine such respective rights of the parties hereto or with respect to any other personthis Escrow Agreement, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedand upon doing so, the Escrow Agent is authorized and directed shall be released from any obligations or liability to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree either party as a consequence of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements claims or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentdemands.

Appears in 1 contract

Samples: Hotel Purchase and Sale Agreement (Apple Hospitality Two Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, To induce the Escrow Agent will to act honestly hereunder, it is further agreed by Acquiror, Xxxxxxxx and in good faith and will exercise that the Seller Representative that: (a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care, diligence care than it gives its own similar property and skill that a reasonably prudent person would exercise shall not be required to invest any Escrowed Property held hereunder except as directed in comparable circumstancesthis Agreement. The Purchaser and Uninvested Escrowed Property held hereunder shall not earn or accrue Interest. (b) This Agreement expressly sets forth all the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason duties of the Escrow Agent's compliance in good faith Agent with the terms hereofrespect to any and all matters pertinent hereto. In case proceedings should hereafter No implied duties or obligations shall be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 read into this Agreement against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will shall not be bound in by the provisions of any way agreement among the other parties hereto except this Agreement. (c) Acquiror, Xxxxxxxx and the Seller Representative hereby jointly and severally indemnify Escrow Agent, its officers, directors, partners, employees and agents (each herein called an "Indemnified Party") against, and hold each Indemnified Party harmless from, any and all expenses, including, without limitation, attorneys' fees and court costs, losses, costs, damages and claims, including, but not limited to, costs of investigation, litigation and arbitration, tax liability and loss on investments suffered or incurred by any contract between Indemnified Party in connection with or arising from or out of this Escrow Agreement, except such acts or omissions as may result from the parties hereto whether willful misconduct or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement gross negligence of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as Indemnified Party. Without limiting the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agentforegoing, the Escrow Agent mayshall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its sole discretion, obey and comply with all writs, orders, judgments gross negligence or decrees so entered willful misconduct) in the investment or issued, whether with reinvestment of the Escrowed Property or without jurisdiction, any loss of Interest incident to any such delays. This Section 10(c) shall survive notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein IT IS THE EXPRESS INTENT OF EACH OTHER PARTY TO INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM THEIR OWN NEGLIGENT ACTS OR OMISSIONS. (d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (e) The Escrow Agent may act pursuant to the contraryadvice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice. (f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. Acquiror shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from either Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 10(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent. (g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it. (h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. (i) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including by a court of competent jurisdiction) or (ii) the date which is 30 calendar days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to Acquiror, Xxxxxxxx and the Seller Representative of the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or a Final Determination. (j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof. (k) In the event of any disagreement between Acquiror and the Seller Representative resulting in adverse claims or demands being made in connection with the Indemnification Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder with respect to the Indemnification Escrowed Property, the Escrow Agent may act upon any shall be entitled to retain the Indemnification Escrowed Property until the Escrow Agent shall have received (i) a Final Determination directing delivery of all or a portion of the Indemnification Escrowed Property or (ii) a written instructions given agreement executed by the Company Acquiror and the Purchaser jointly. Notwithstanding anything to Seller Representative directing delivery of all or a portion of the contrary contained hereinIndemnification Escrowed Property, in which event the Escrow Agent shall disburse the Indemnification Escrowed Property in accordance with such Final Determination or written agreement. The Escrow Agent shall act on such Final Determination or written agreement without further question. In the event of any dispute arising disagreement between Acquiror and Xxxxxxxx resulting in adverse claims or demands being made in connection with the Purchaser and Xxxxxxxx Escrowed Property, or in the Company or between any other persons or between any of them event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription ProceedsXxxxxxxx Escrowed Property, the Escrow Agent may shall be entitled to retain the Xxxxxxxx Escrowed Property until the Escrow Agent shall have received (i) a Final Determination directing delivery of all or a portion of the Xxxxxxxx Escrowed Property or (ii) a written agreement executed by Acquiror and Xxxxxxxx directing delivery of all or a portion of the Xxxxxxxx Escrowed Property, in its sole discretion deliver and interplead which event the Subscription Proceeds into court and Escrow Agent shall disburse the Xxxxxxxx Escrowed Property in accordance with such delivery and interpleading will Final Determination or written agreement. The Escrow Agent shall act on such Final Determination or written agreement without further question. (l) The compensation of the Escrow Agent (as payment in full) for the services to be an effective discharge rendered by the Escrow Agent hereunder shall be paid pursuant to the attached fee schedule. Acquiror hereby agrees with the Escrow Agent, Xxxxxxxx and the Seller Representative that all fees and expenses of the Escrow Agent hereunder shall be paid by Acquiror. Without limiting Acquiror's obligations as set forth in the immediately preceding sentence, any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken first, from the Indemnification Escrowed Property, and second, from the Xxxxxxxx Escrowed Property held by the Escrow Agent hereunder. The Escrow Agent's fee may be adjusted from time to time to conform to its then current guidelines. (m) Except as may be required by applicable law, no prospectuses, press releases, reports and promotional material, or other similar materials which mention in any language the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. (n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depositary Trust Company and the Federal Reserve Book Entry System.

Appears in 1 contract

Samples: Escrow Agreement (Haggar Corp)

The Escrow Agent. (a) Parent shall pay the Escrow Agent's fee for its ordinary services under this Agreement in accordance with the fee schedule set forth on Schedule B attached hereto. (b) In exercising the rights, performing any duties and obligations prescribed or confirmed by under this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will shall not be obliged to defend any such action liable for damages, losses, or submit its rights to expenses, except for gross negligence or willful misconduct on the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs part of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may shall not incur any such liability for (i) any act on or failure to act made or omitted in good faith, or (ii) any action taken or omitted in reliance upon any instrument, including any written statement or affidavit provided for in this Agreement that such agent shall in good faith believe to be genuine, nor will the advice of counsel but will not Escrow Agent be liable or responsible for acting forgeries, fraud, impersonations, or failing to determining the scope of any representative authority. In addition, the Escrow Agent may consult with legal counsel in connection with its duties under this Agreement and shall be fully protected in any act on taken, suffered, or permitted by it in good faith in accordance with the advice of counsel. The Escrow Agent will is not be bound in responsible for determining and verifying the authority of any way by such person acting or purporting to act on behalf of any contract party to this Agreement. (c) If any controversy arises between the parties hereto whether to this Agreement, or not it has notice thereof or with any other party, concerning the subject matter of this Agreement, its terms and conditions and or conditions, the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon determine the sufficiency controversy or to take any action regarding it. The Escrow Agent may hold the Escrow Fund and may wait for settlement of any of the Subscription Proceeds such controversy by arbitration pursuant to Section 8 hereof, by final appropriate legal proceedings or to ascertain whether or not the person or persons who have executedother means as, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with in the Escrow Agent's discretion, may be required, despite what may be set forth elsewhere in this Agreement. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agentevent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto for interest or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacateddamage. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this AgreementFurthermore, the Escrow Agent may continue at its option, file an action of interpleader requiring the parties to hold answer and litigate any claims and rights among themselves. The Escrow Agent is authorized to deposit with the Subscription Proceeds until the lawful determination clerk of the issue between court the entire Escrow Fund, except for such part of the Escrow Fund as shall reimburse the Escrow Agent for all costs, expenses, charges and reasonable attorney fees incurred by the Escrow Agent due to the interpleader action and which the parties heretojointly and severally agree to pay. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liabilities imposed by the terms of this Agreement, except for obligations or liabilities arising by reason of the prior gross negligence or willful misconduct on the part of the Escrow Agent. (d) The Company (to the extent of the Escrow Fund only) and Parent shall jointly and severally indemnify and hold harmless the Escrow Agent for any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and attorneys' fees) which it may incur or which may be imposed on it in connection with the performance of the Escrow Agent's duties under this Agreement, including but not limited to any litigation arising from this Agreement, except losses, claims, damages, liabilities or expenses arising out of gross negligence or willful misconduct on the part of the Escrow Agent. (e) The Escrow Agent may resign as Escrow Agent by at any time upon giving not less then ten at least thirty (1030) days' written notice thereof to each the parties; provided, however, that no such resignation shall become effective until the appointment of a successor escrow agent which shall be accomplished as follows: The parties shall use their best efforts to mutually agree on a successor escrow agent within thirty (30) days after receiving such notice. If the Purchaser or the Company. The Purchaser and the Company may terminate parties fail to agree upon a successor escrow agent within such time, the Escrow Agent by giving shall have the right to appoint a successor escrow agent authorized to do business in the state of California. The successor escrow agent shall execute and deliver an instrument accepting such appointment, and it shall, without further acts, be vested with all the estates, properties, rights, powers and duties of the predecessor Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as if originally named as the Escrow Agent. Upon such appointment, the Purchaser and the Company may agree upon. All indemnities granted to the predecessor Escrow Agent will survive shall be discharged from any further duties and liability under this Agreement, except for obligations or liabilities arising by reason of the termination of this Agreement prior gross negligence or willful misconduct on the resignation or termination part of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.

Appears in 1 contract

Samples: Merger Agreement (Eco Form International Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10a) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon shall promptly dispose of all or any written instructions given part of the Escrow Shares as directed by a writing jointly signed by the Company Shareholders' Representative and SWI. All fees and expenses to which the Escrow Agent is entitled in connection with its execution and performance of this Agreement (which are set forth on Schedule 2 hereto) shall be borne by SWI. In the administration of the escrow account hereunder, the Escrow Agent may execute any of its powers or perform any of its duties hereunder directly or through agents or attorneys and may consult with counsel, accountants and other skilled persons to be selected in good faith and retained by it. The Escrow Agent shall not be liable for any act or omission to act under this Agreement, including any and all claims made against the Escrow Agent as a result of its holding the Escrow Shares in its own name, unless a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to the parties hereto. The Escrow Agent shall not be liable for, and SWI and the Purchaser jointlyParticipating Holders shall jointly and severally indemnify the Escrow Agent for and hold it harmless against, any losses, liability, expense or claims (including reasonable out of pocket expenses) arising out of any action by the Escrow Agent taken or omitted in good faith hereunder or upon the advice of counsel, accountants or other skilled professionals engaged by the Escrow Agent; provided, however, that the liability of each Participating Holder on account of such indemnification shall not exceed his or her Proportionate Interest in the Escrow Shares. Notwithstanding anything to the contrary contained hereinin this Agreement, in no event shall the event Escrow Agent be liable for special, indirect or consequential damages of any dispute arising between kind whatsoever (including but not limited to lost profits), even if the Purchaser Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Agreement. The Escrow Agent may act upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so and the Company Escrow Agent shall not incur any liability for following the instructions herein contained or between expressly provided for or written instructions given by parties hereto. The Escrow Agent's duties shall be determined only with reference to this Agreement and applicable laws, and the Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other persons document or between agreement, including, but not limited to, the Merger Agreement. (b) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of them with respect its resignation to the Subscription Agreementparties hereto, this Agreement at the addresses set forth herein or any matters arising theretoat such other address as the parties shall provide, or with respect at least thirty (30) days prior to the Subscription Proceedsdate specified for such resignation to take effect. In such event SWI and the Shareholders' Representative shall jointly appoint a successor escrow agent within said thirty (30) days; if SWI and the Shareholders' Representative do not designate a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrow Shares together with all cash and other property then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by SWI and the Shareholders' Representative. (c) In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in any court of competent jurisdiction in the State of New York or Commonwealth of Massachusetts and request that such court determine the respective rights of such parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to either party as a consequence of any such claims or demands. (d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as fiduciary or otherwise in any jurisdiction other than the State of New York. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto. (e) Any corporation into which the Escrow Agent in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will individual capacity may be an effective discharge merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow AgentAgent in its individual capacity shall be a party, or any corporation to which substantially all of the corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under this Agreement without further act.

Appears in 1 contract

Samples: Merger Agreement (Stone & Webster Inc)

The Escrow Agent. 6.1. The Escrow Agent shall promptly dispose of all or any part of the Escrow Amount as directed by written instructions signed by the Depositors, subject to the other provisions of this Section 6 in its entirety. 6.2. In exercising the rights, duties and obligations prescribed or confirmed by this Agreementadministration of the escrow account hereunder, the Escrow Agent will act honestly may execute any of its powers or perform any of its duties hereunder directly or through agents or attorneys and may consult with counsel, accountants and other professionals to be selected in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstancesretained by it. 6.3. The Purchaser and the Company jointly and severally covenant and agree from time Escrow Agent shall not be liable for any act or failure to time and at all times hereafter well and truly to saveact under this Agreement, defend and keep harmless and fully indemnify or in connection herewith, including any negligent act of the Escrow Agent, except that the Escrow Agent shall be liable for its successorsown gross negligence or willful misconduct. The Escrow Agent shall at its option be entitled to refuse to comply with any disagreeing or adverse claims or demands during the continuance of such disagreement and may refrain from delivering any item affected thereby without becoming liable to any Depositor or to any other person due to its failure to comply with such demands until (a) all rights of the adverse claimants (including any third parties making an adverse claim) have been finally adjudicated by a court having jurisdiction of the parties and the items affected thereby, after which time the Escrow Agent shall be entitled to act in conformity with such adjudication; or (b) all differences shall have been adjusted by agreement and the Escrow Agent shall have been directed in writing signed by the Depositors and all other persons making adverse claims or demands, at which time the Escrow Agent shall be protected in acting in compliance therewith. The rights of the Escrow Agent under this Section 6 are cumulative of all other rights it may have by law or otherwise. Escrow Agreement 6.4. The Escrow Agent shall not be liable for, and assignseach of SCC and the Sellers shall jointly and severally indemnify the Escrow Agent for and hold it harmless against, from any losses, liability, damages, expense or claims (including reasonable out-of-pocket expenses and against all lossin-house or outside counsel fees) arising out of any action by the Escrow Agent taken or omitted in good faith hereunder or upon the advice of counsel, costs, charges, suits, demands, claims, damages and expenses which accountants or other professionals engaged by the Escrow Agent, its successors or assigns may at arising from any time claims, controversies or times hereafter bear, sustain, suffer or be put unto legal proceedings in connection with this Agreement. It is the express intent of the parties that the indemnity provided for or by reason or on account in this Escrow Agreement is to indemnify the Escrow Agent from the consequences of its acting pursuant own negligence (but not the Escrow Agent’s gross negligence or willful misconduct) whether that negligence is the sole or concurring cause of the loss, liability, damage or cost. The obligations of the Depositors to this Agreement or anything in any manner relating thereto or by reason the Escrow Agent hereunder shall be performable at the office of the Escrow Agent's compliance Agent in good faith with Dallas, Texas, and shall survive the terms hereoftermination of this Agreement for any reason whatsoever. In case proceedings should hereafter be taken in any court respecting It is the Subscription Proceeds, intention of the parties hereto that the Escrow Agent will not shall never be obliged required to defend use or advance its own funds or otherwise incur personal financial liability in the performance of any such action of its duties or submit the exercise of any of its rights and powers hereunder. 6.5. Notwithstanding anything to the court until it contrary in this Agreement, in no event shall the Escrow Agent be liable for special, indirect or consequential damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been indemnified by other good and sufficient security in addition to advised of the indemnity given in Clause 4.2 against its costs likelihood of such proceedingsloss or damage and regardless of the form of action in which such loss or damages are sought. The Escrow Agent will have no responsibility may decline to act and shall not be liable for failure to act if it is in respect of loss of the Subscription Proceeds except the duty doubt as to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agentits duties under this Agreement. 6.6. The Escrow Agent may act on upon any instrument or signature reasonably believed by it to be genuine and may assume that any person reasonably believed by the advice of counsel but will Escrow Agent to be authorized to give any notice or instruction hereunder has been duly so authorized, and the Escrow Agent shall not incur any liability for following the instructions therein contained or expressly provided for herein. 6.7. The Escrow Agent’s duties shall be responsible determined only with reference to this Agreement and applicable laws, and the Escrow Agent is not charged with knowledge of, or any duties or responsibilities in connection with, any other document or agreement, including the Purchase Agreement, except for acting or failing to act on the advice of counseldefined terms therein that are used in this Agreement. 6.8. The Escrow Agent will not be bound in shall have the right at any way time to resign hereunder by any contract between the parties hereto whether or not it has giving written notice thereof or of its terms and conditions and resignation to the only dutyDepositors pursuant to Section 8, liability and responsibility of at least thirty days prior to the date specified for such resignation to take effect. In such event, the Depositors shall appoint a successor escrow agent within the thirty-day period, but if they fail to do so, the Escrow Agent will may appoint a successor escrow agent, which shall in no event be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not Depositors. Upon the person or persons who have executedeffective date of its resignation, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that shall deliver the said documents are deposited with Escrow Amount then held by it hereunder to such successor escrow agent against a written receipt therefor or as herein specified otherwise shall be designated in writing by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attentionDepositors. 6.9. In the event that the Subscription Proceeds are attached, garnished Escrow Agent is at any time confronted with inconsistent or levied upon under any court order, conflicting claims or if demands by one or more of the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow AgentDepositors, the Escrow Agent may, shall have the right to interplead those Parties in its sole discretion, obey a court of competent jurisdiction situated in the State of Michigan and comply to request that such court determine the respective rights and obligations of the Parties with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of respect to this Agreement to the contrary. If and upon doing so, the Escrow Agent obeys and complies with shall be released from any such writs, order, judgment obligations or decrees it will not be liable liability to any of the parties hereto Depositors as a consequence of any such claims or demands. Escrow Agreement 6.10. Nothing in this Agreement shall be deemed to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, impose upon the Escrow Agent is authorized any duty to qualify to do business or to act as a fiduciary or otherwise in any jurisdiction other than the State of Texas. The Escrow Agent shall not be responsible for, and directed shall not be under a duty to disregard in its sole discretion examine, inquire into, or pass upon, the validity, binding effect, execution or sufficiency of this Agreement or of any and all notices and warnings amendment or supplement hereto. 6.11. Any corporation into which the Escrow Agent may be given merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to it which the Escrow Agent shall be a party, or any corporation to which substantially all of the corporate trust business of the Escrow Agent may be transferred, shall be the Escrow Agent under this Agreement without further act by any of the parties hereto Parties; and provided, further, that this Agreement is entered into with Comerica Bank, a Michigan banking corporation (for purposes of this Section 6.11, the "Merged Bank"). The Merged Bank has been or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply will be merged with and obey such ordersinto Comerica Bank, judgements or decrees a Texas banking association (for purposes of this Section 6.11, the "Surviving Bank"). The undersigned hereby acknowledge and agree that any reference in case of such compliancethis Agreement to Comerica Bank, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or a Michigan banking corporation, even if thereafter any such ordershall mean Comerica Bank, judgment or decree may be reverseda Texas banking association, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary as successor by merger to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties heretoMerged Bank. 6.12. The Escrow Agent may resign as Escrow Agent by giving not less then ten shall have no obligation to prepare any applicable tax return (10local state or federal) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate in connection with the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date Amount except as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agent's own income.

Appears in 1 contract

Samples: Escrow Agreement (Sterling Construction Co Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the (a) The Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at shall promptly distribute all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason part of the Escrow Agent's compliance Shares in good faith accordance with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingsthis Agreement. The Escrow Agent shall not be called upon to advise any person or entity as to any investments with respect to any security, property or funds held in escrow hereunder or the dividends, distributions, income, interest or earnings thereon. The Escrow Agent shall act hereunder as an escrow agent only and shall not be responsible or liable in any matter whatever for the sufficiency, collection, correctness, genuineness or validity of any revenues, cash, payments, securities, property, funds, investments, income, earnings or other amounts deposited with or held by it or for the identity, authority or rights of any person or entity executing and delivering or purporting to execute or deliver any thereof to the Escrow Agent. (b) The reasonable fees and expenses of the Escrow Agent in connection with its preparation, negotiation, amendment, modification, waiver, execution, delivery, performance and enforcement of this Agreement as set forth on SCHEDULE 5 hereto shall be borne by Genmar which amount shall be due and payable upon the signing of this Agreement and on the first day of each subsequent year during which this Agreement remains in effect. The Escrow Agent shall not be liable for any error of judgment or for any act taken or suffered or omission to act under this Agreement, including any and all claims made against the Escrow Agent as a result of its holding the Escrow Shares in its own name, except for its own gross negligence or willful misconduct, each as determined by a final non-appealable order, judgment, decree or ruling of a court of competent jurisdiction. In no event shall the Escrow Agent be liable or responsible for special, punitive, indirect, consequential or incidental loss or damages of any kind whatsoever to any person or entity (including without limitation lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage. Any liability of the Escrow Agent under this Escrow Agreement will be limited to the amounts of fees paid to the Escrow Agent. The Partnerships and Genmar, jointly and severally, agree to indemnify and hold harmless from and against any and all claims, losses, costs, liabilities, damages, penalties, settlements, actions, proceedings, suits, litigation, investigations, demands, judgments or expenses (including but not limited to reasonable attorney's fees) claimed against or incurred by the Escrow Agent arising out of or related, directly or indirectly, to this Agreement, except acts of gross negligence or willful misconduct, each as determined by a final non-appealable order, judgment, decree or ruling of a court of competent jurisdiction. The Escrow Agent shall not be obligated to expend or risk its own funds or to take any action which it believes would expose it to expense or liability or to a risk of incurring expense or liability, unless it has been furnished with assurances of repayment or indemnity reasonably satisfactory to it. (c) The Escrow Agent may act in reliance upon any instructions, direction, request or other communication or instrument with a signature believed by it to be genuine and may assume that any person who has been designated by Genmar or a Recipient or otherwise pursuant hereto to give any written instructions, notice or receipt, or make any statements in connection with the provisions hereof, has been duly authorized to do so. The Escrow Agent shall have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof make inquiry as it would exercise if the Subscription Proceeds belonged to the genuineness, accuracy or validity of any statements or instructions or any signatures on statements or instructions. The name and true signatures of each individual authorized to act on behalf of Genmar and each Recipient are stated in SCHEDULE 4 as to Genmar and on the signature pages hereto as to each Recipient. The Escrow Agent's duties shall be determined only with reference to those which are expressly set forth in this Agreement (and no implied duties), and the Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement. In the event the Escrow Agent determines in good faith any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Escrow Agent hereunder, Escrow Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to any Party or any other person or entity for refraining from taking such action, unless the Escrow Agent receives written instructions signed by the relevant Parties which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent. The Escrow Agent may act on the consult with and obtain advice of from counsel but will not (who may be responsible for acting counsel to a Party or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility an employee of the Escrow Agent will be to hold the Subscription Proceeds as herein directed Agent) and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as fully protected in taking, suffering or omitting to take any action in reliance on said advice. Without limiting the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agentforegoing, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will shall not be liable subject to, nor be required to comply with, or determine if any person or entity has complied with, the Plan of the parties hereto Recapitalization or to any other personagreement between or among the Parties, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees even though reference thereto may be subsequently reversedmade in this Escrow Agreement, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such ordersany notice, judgements instruction, direction, request or decrees and in case of such complianceother communication, it shall not be liable by reason thereof to any of the parties hereto paper or to any document other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, than as expressly set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained forth in this Escrow Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. . (d) The Escrow Agent may shall have the right at any time to resign as Escrow Agent hereunder by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving its resignation to the Escrow Agent a notice of termination executed by each of them not less than ten Parties, at the addresses set forth herein or at such other address as the Parties shall provide, at least thirty (1030) days prior to the proposed date specified for such resignation to take effect. In such event Genmar shall appoint a successor escrow agent, which shall be a bank or trust company reasonably acceptable to OCM Principal Opportunities Fund, L.P. and Genmar Alexandra, LLC (the "Minimum Recipients"), within said thirty (30) days; if Genmar does not designate a successor escrow agent within such period, the Minimum Recipients may appoint a bank or trust company reasonably acceptable to Genmar as a successor escrow agent, provided that they did not unreasonably withhold their consent to the appointment of a successor escrow agent by Genmar pursuant to this Section 5(d). Upon the effective date of terminationsuch resignation, the Escrow Shares together with all cash and other property then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent. In the event a successor escrow agent is not appointed within said thirty (30) days, the Escrow Shares and all cash and other property held by the Escrow Agent shall be delivered to and deposited with a court of competent jurisdiction to act as successor escrow agent. Upon the delivery of the Escrow Shares pursuant to this Section 5(d) to a successor escrow agent, the Escrow Agent shall be relieved of all liability hereunder, except for any liability arising out of the Escrow Agent's gross negligence or willful misconduct, each as determined by a final non-appealable order, judgment, decree or ruling of a court of competent jurisdiction. (e) The Escrow Agent may engage or be interested in any financial or other transaction with any party hereto or affiliate thereof, and may act on, or as depositary, trustee or agent for, any committee or body of holders of obligations of such party or affiliate, as freely as if it were not the Escrow Agent hereunder. The resignation Escrow Agent shall not incur any liability for not performing any act, duty, obligation or termination responsibility by reason of any occurrence beyond the control of the Escrow Agent will be effective and the (including without limitation any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil disorder or failure of any means of communication). (f) The Escrow Agent will cease may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be under a duty to be bound by examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement on the date that is ten or of any amendment or supplement hereto. (10g) days after the date The provisions of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will this Section 5 shall survive the termination of this Escrow Agreement or and the resignation or termination removal of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.

Appears in 1 contract

Samples: Escrow Agreement (General Maritime Corp/)

The Escrow Agent. In exercising (a) The Escrow Agent shall not deal with the rights, duties and obligations prescribed or confirmed by Escrow Shares except in accordance with (i) this Agreement, the or (ii) written instructions given in conformity with this Agreement. The Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or shall not be put unto for or by reason or on account of its acting pursuant to this Agreement or anything bound in any manner relating thereto or other way by reason of the Reorganization Agreement, it being understood that the Escrow Agent's compliance only duties and responsibilities shall be to hold and distribute the Escrow Shares in good faith accordance with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingsthis Agreement. The Escrow Agent will shall have no liability with respect to any action taken by it except for its own gross negligence or willful misconduct. The Escrow Agent makes no representations and has no responsibility in respect as to the validity, genuineness or sufficiency of loss any of the Subscription Proceeds except the duty to exercise such care documents or instruments included in the safekeeping thereof subject matter of the escrow. The Escrow Agent shall be entitled to rely, and shall be protected in acting in reliance upon, any instructions or directions furnished to it in writing or pursuant to any provisions of this Agreement and shall be entitled to treat as genuine, and as the document it would exercise if purports to be, any letter, paper or other document furnished to it and believed by it to be genuine and to have been signed and presented by the Subscription Proceeds belonged to the Escrow Agentproper party or parties. The Escrow Agent may act on in reliance upon the advice of counsel but will satisfactory to it in reference to any matter in connection with the escrow and shall not incur any liability for any action taken in good faith in accordance with such advice. In no event shall the Escrow Agent be responsible required to notify or obtain the consent, approval, authorization or order of any court or governmental body pursuant to the transactions contemplated by the provisions of this Agreement. (b) Acquiror shall pay the Escrow Agent's reasonable annual compensation for acting or failing the services to act on the advice of counsel. be rendered hereunder, agreed to be $750.00. (c) The Escrow Agent will not be bound in any way shall have first lien on all items held by any contract between the parties hereto whether or not it has notice thereof or of hereunder for its terms compensation and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will shall not be required to pass upon deliver the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but Escrow Shares deposited with it shall be sufficient for all purposes under this Agreement insofar as the unless and until it shall have received full payment for its compensation. (d) The Escrow Agent is concerned that the said documents are deposited with shall not be liable to anyone whatsoever by reason of any error of judgment or for any act done or step taken or omitted by it as herein specified in good faith or for any mistake of fact or law or for anything which it may do or refrain from doing in connection herewith unless caused by the parties executing this Agreement with the Escrow Agentor arising out of its own gross negligence or willful misconduct. In no event will shall the Escrow Agent be deemed to have assumed liable for any liability special or responsibility for the sufficiency, form and manner of making any notice consequential damages caused by its gross negligence or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentwillful misconduct.

Appears in 1 contract

Samples: Escrow Agreement (Jones James E)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Fund as directed by a writing signed by the Escrow Representative and Buyer. The reasonable fees and expenses of the Escrow Agent, including legal fees incurred in connection with the preparation of this Agreement and including the fees and disbursements of its counsel, if any, in connection with its performance of this Agreement shall be paid from the income on the Escrow Fund and, if and to the extent not so paid, shall be borne equally by the Holders and Buyer. The Escrow Agent shall be entitled to reimbursement on demand for all expenses incurred in connection with the administration of this Agreement or the escrow created hereby which are in excess of its compensation for normal services hereunder, including without limitation, payment of any legal fees and expenses incurred by the Escrow Agent in connection with resolution of any dispute hereunder. The Escrow Agent, its directors, officers and employees shall not be liable for any act or omission to act under this Escrow Agreement except for its own gross negligence or willful misconduct. The Escrow Agent shall not be liable for, and Buyer, the Company and the Holders shall jointly and severally indemnify the Escrow Agent against, any losses or claims arising out of or any action taken or omitted in good faith hereunder and upon the advice of counsel, including in-house counsel. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Agreement. The Escrow Agent may act upon any written instructions given instrument or signature believed by it to be genuine and shall have no responsibility for determining the accuracy thereof, and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Escrow Agreement and applicable laws, and the Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including the Stock Purchase Agreement. The Escrow Agent shall not be obligated to take any legal or other action hereunder which might in its judgment involve any expense or liability unless it shall have been furnished with acceptable indemnification. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages. Buyer, the Company and the Purchaser jointly. Notwithstanding anything Holders jointly and severally, agree to the contrary contained herein, in the event of assume any dispute arising between the Purchaser and the Company all obligations imposed now or between hereafter by any other persons or between any of them applicable tax law with respect to the Subscription payment of Escrow Funds under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent in any such payment or other activities under this Agreement or any matters arising theretoAgreement. Buyer, or the Company and the Holders undertake to instruct the Escrow Agent in writing with respect to the Subscription ProceedsEscrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. Buyer, the Company and the Holders, jointly and severally, agree to indemnify and hold the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.harmless from any

Appears in 1 contract

Samples: Escrow Agreement (Nextera Enterprises Inc)

The Escrow Agent. 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. . 4.2 The Purchaser Company and the Company Investor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's ’s compliance in good faith with the terms hereof. . 4.3 In case proceedings should hereafter be taken in any court respecting the Subscription ProceedsShares and Warrants, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. . 4.4 The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds Shares and Warrants except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds Shares and Warrants belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. . 4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds Shares and Warrants as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. . 4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. . 4.7 In the event that the Subscription Proceeds Shares and Warrants are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without D/BIP/644415.2 jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. . 4.8 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. . 4.9 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds Shares and Warrants until the lawful determination of the issue between the parties hereto. . 4.10 If protest is made to any action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may continue to hold the Shares and Warrants until the right to the Shares and Warrants is legally determined by a court of competent jurisdiction or otherwise. 4.11 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser Company or the CompanyInvestor. The Purchaser Company and the Company Investor may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser Company and the Company Investor may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. . 4.12 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser Investor jointly. . 4.13 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser Company and the Company Investor or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription ProceedsShares and Warrants, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds Shares and Warrants into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.

Appears in 1 contract

Samples: Escrow Agreement (Pluristem Life Systems Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the (a) The Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstancesshall have no liability or obligation with respect to the Deposit except for Escrow Agent’s willful misconduct or gross negligence. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, ’s sole responsibility shall be for the safekeeping and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason disbursement of the Escrow Agent's compliance Deposit in good faith accordance with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingsthis Agreement. The Escrow Agent will shall have no responsibility in respect implied duties or obligations and shall not be charged with knowledge or notice of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agentany fact or circumstance not specifically set forth herein. The Escrow Agent may act on rely upon any instrument, not only as to its due execution, validity and effectiveness, but also as to the advice truth and accuracy of counsel but will not any information contained therein, which the Escrow Agent shall in good faith believe to be responsible genuine, to have been signed or presented by the person or parties purporting to sign the same and conform to the provisions of this Agreement. In no event shall the Escrow Agent be liable for acting incidental, indirect, special, and consequential or failing to act on the advice of counselpunitive damages. The Escrow Agent will shall not be bound obligated to take any legal action or commence any proceeding in connection with the Deposit, any way by account in which the funds are deposited, this Agreement or the Purchase Agreement, or to appear in, prosecute or defend any contract between the parties hereto whether such legal action or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forthproceeding. The Escrow Agent will not be required may consult legal counsel selected by it in any event of any dispute or question as to pass upon the sufficiency construction of any of the Subscription Proceeds provisions hereof or of any other agreement or its duties hereunder, or relating to ascertain whether any dispute involving any party hereto, and shall incur no liability and shall be fully indemnified from any liability whatsoever in acting in accordance with the opinion or not instructions of such counsel. The Buyer and Seller jointly and severally shall promptly pay, upon demand, the person or persons who have executedreasonable fees and expenses of any such counsel. (b) The Escrow Agent is hereby authorized, signed or otherwise in its sole discretion, to comply with orders issued or authenticated process entered by any court with respect to the said documents have authority to so executeDeposit, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as without determination by the Escrow Agent is concerned that of such court’s jurisdiction in the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agentmatter. In no event will the Escrow Agent be deemed to have assumed If any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or portion of the identity of the persons executing the same, but it shall be sufficient if Deposit is at any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are time attached, garnished or levied upon under any court order, or if in case the payment, assignment, transfer, conveyance or delivery of any such property is shall be stayed or enjoined by any court order or if any court order, or in any case any order judgment or decree is shall be made or entered by any court affecting such property or affecting any act by the Escrow Agentpart thereof, then and in any such event, the Escrow Agent mayis authorized, in its sole discretion, obey to rely upon and comply with all writsany such order, orderswrit, judgments judgment or decrees so entered decree which it is advised by legal counsel selected by it to be binding upon it, without the need for appeal or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If other action; and if the Escrow Agent obeys and complies with any such writsorder, orderwrit, judgment or decrees decree, it will shall not be liable to any of the parties hereto or to any other person, firm person or corporation entity by reason of such compliancecompliance even though such order, notwithstanding that such writswrit, orders, judgments judgment or decrees decree may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided. (c) From and at all times after the date of this Agreement, the Buyer and Seller, jointly and severally, shall, to the fullest extent permitted by law and to the extent provided herein, indemnify and hold harmless the Escrow Agent is authorized and directed to disregard in its sole discretion each partner, director, officer, employee, attorney, agent and affiliate of Escrow Agent (collectively, the “Indemnified Parties”) against any and all notices actions, claims (whether or not valid), losses, damages, liabilities, costs and warnings which may be given to it expenses of any kind or nature whatsoever (including without limitation reasonable attorney’s fees, costs and expenses) incurred by or asserted against any of the parties hereto Indemnified Parties from and after the date hereof, whether direct, indirect or consequential, as a result of or arising from or in any way relating to any claim, demand, suit, action, or proceeding (including any inquiry or investigation) by any other person, firmincluding without limitation the parties to this Agreement, association whether threatened or corporation. It willinitiated, asserting a claim for any legal or equitable remedy against any person under any statute or regulation, including, but not limited to, any federal or state securities laws, or under any common law or equitable cause or otherwise, arising from or in connection with the negotiation, preparation, execution, performance or failure of performance of this Agreement or any transaction contemplated herein, whether or not any such Indemnified Party is a party to any such action or proceeding, suit or the target of any such inquiry or investigation; provided, however, obey that no Indemnified Party shall have the order, judgment or decree of any right to be indemnified hereunder for liability finally determined by a court of competent jurisdiction, and it is hereby authorized subject to comply with and obey such ordersno further appeal, judgements to have resulted from the gross negligence or decrees and in case willful misconduct of such complianceIndemnified Party. The obligations of the parties under this section shall survive any termination of this Agreement, it and resignation or removal of Escrow Agent shall not be liable independent of any obligation of Escrow Agent. (d) The Parties agree that no payment by reason thereof Buyer or Seller of any claim by the Escrow Agent for indemnification hereunder shall impair, limit, modify or affect, as among the Buyer and Seller, their respective rights and obligations with respect to one another. (e) If at any time, there shall exist any dispute among any of the parties hereto Buyer and Seller with respect to holding or to disposition of any portion of the Deposit or any other personobligations of Escrow Agent hereunder, firm, association or corporation, even if thereafter at any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If time the Escrow Agent receives any written instructions contrary is unable to determine, to the instructions contained Escrow Agent’s sole satisfaction, the proper disposition of any portion of the Deposit or the Escrow Agent’s proper actions with respect to its obligations hereunder, or if the parties have not within thirty (30) days of the furnishing by the Escrow Agent of a notice of resignation pursuant to the notice provisions hereof, appointed a successor Escrow Agent to act hereunder, then Escrow Agent may, in its sole discretion, take either or both of the following actions: (i) suspend the performance of any of its obligations (including without limitation any disbursement obligations) under this AgreementAgreement until such dispute or uncertainty shall be resolved to the sole satisfaction of the Escrow Agent or until a successor Escrow Agent shall be appointed (as the case may be); provided however, the Escrow Agent may shall continue to hold the Subscription Proceeds until Deposit in accordance with the lawful determination terms hereof; or (ii) petition (by means of an interpleader action or any other appropriate method) any court of competent jurisdiction in any venue convenient to the issue between Escrow Agent, for instructions with respect to such dispute or uncertainty, and to the parties hereto. extent required by law, pay into such court, for holding and disposition in accordance with the instructions of such court, all funds held by it in the Deposit, after deduction and payment to the Escrow Agent of all fees and expenses (including court costs and reasonable attorneys’ fees) payable to, incurred by, or expected to be incurred by Escrow Agent in connection with performance of its duties and the exercise of its rights hereunder. (f) The Escrow Agent may resign as Escrow Agent from the performance of its duties hereunder at any time by giving not less then thirty (30) days’ prior written notice to the Parties or may be removed, with or without cause, by the Parties, acting jointly, by furnishing a joint written direction to the Escrow Agent, at any time by the giving of ten (10) days' ’ prior written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a as provided herein below. Upon any such notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of removal, the Buyer and Seller jointly shall appoint a successor Escrow Agent will be effective and hereunder. Upon the acceptance in writing of any appointment of an Escrow Agent will cease to be bound hereunder by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the a successor Escrow Agent, such successor Escrow Agent shall thereupon succeed to and become vested with all the Purchaser rights, powers, privileges and duties of the retiring Escrow Agent, and the Company may agree uponretiring Escrow Agent shall be discharged from its duties and obligations under this Escrow Agreement, but shall not be discharged from any liability for actions taken as Escrow Agent hereunder prior to such succession. All indemnities granted After any retiring Escrow Agent’s resignation or removal, the provisions of this Escrow Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Escrow Agent under this Escrow Agreement. The retiring Escrow Agent shall transmit all records pertaining to the Deposit and shall pay all funds held by it in the Deposit to the successor Escrow Agent, after making copies of such records as the retiring Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein deems advisable and after deduction and payment to the contrary, the retiring Escrow Agent may act upon any written instructions given of all fees and expenses (including court costs and reasonable attorneys’ fees) payable to, incurred by, or expected to be incurred by the Company retiring Escrow Agent in connection with the performance of its duties and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event exercise of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentrights hereunder.

Appears in 1 contract

Samples: Escrow Agreement (Dynastar Holdings, Inc.)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, To induce the Escrow Agent will to act honestly and in good faith and will exercise that degree of carehereunder, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser it is further agreed by Buyer and the Company jointly and severally covenant and agree from time to time and at Seller Group that: (a) This Agreement expressly sets forth all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason duties of the Escrow Agent's compliance in good faith Agent with the terms hereofrespect to any and all matters pertinent hereto. In case proceedings should hereafter No implied duties or obligations shall be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 read into this Agreement against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for acting or failing bound by, nor chargeable with, knowledge of, nor have any requirements to act on comply with the advice provisions of counselany agreement, including but not limited to the Stock Purchase Agreement (each, an “Underlying Agreement”) except as provided in this Agreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of any Underlying Agreements, even though reference thereto may be made in this Agreement. (b) The Escrow Agent shall be obligated only to perform the duties described in this Agreement. The Escrow Agent will shall not be bound liable for any conduct or default of any other bank in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of which the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forthAmount is deposited. The Escrow Agent will not be required may rely on any instrument or signature delivered pursuant to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as and reasonably believed in good faith by the Escrow Agent is concerned that to be genuine and to have been signed or presented by an Authorized Representative of the said documents are deposited with proper Party or Parties duly authorized to do so. The Escrow Agent shall not be liable for any mistake of fact or error of judgment or for any action suffered or omitted to be taken by it as herein specified of any kind unless caused by the parties executing this Agreement with bad faith, willful misconduct or negligence of the Escrow Agent. In no the event will of any dispute or question as to the duties of the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiencyhereunder, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in shall be entitled, at the Escrow Agent’s option, without liability to any manner sufficient Person having any claim to bring it the Escrow Amount (or any portion thereof), to its attentionrefuse to perform any act other than to retain the Escrow Amount (or any portion thereof) until the Escrow Agent shall have received (i) a Final Determination directing delivery of the Escrow Amount (or any portion thereof), (ii) a Joint Direction directing delivery of the Escrow Amount (or any portion thereof) or (iii) a Claim Expiration Notice directing delivery of the Escrow Amount (or any portion thereof). In the event that the Subscription Proceeds are attached, garnished or levied upon under any court Any order, judgment or if decree presented to the delivery Escrow Agent as the basis for a disbursement of amounts held in the Escrow Account shall be accompanied by a certificate executed by the Party requesting the disbursement to the effect that such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agenta Final Determination, upon which certificate the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contraryshall conclusively rely. If the The Escrow Agent obeys and complies with shall not consider any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree to constitute a Final Determination unless accompanied by such a certificate. Anything in this Agreement to the contrary notwithstanding, in no event shall any Party be liable for special, incidental, punitive, indirect or consequential loss or damage of any court of competent jurisdiction, and it is hereby authorized kind whatsoever (including but not limited to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporationlost profits), even if thereafter such Party has been advised of the likelihood of such loss or damage and regardless of the form of action. (c) The Escrow Agent is not a party to, and is not bound by or charged with notice of, the Stock Purchase Agreement or any such other agreement out of which this Agreement may arise. (d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment judgment, certification, demand, notice, instrument or decree may be reversed, modified, annulled, set aside or vacated. If other writing delivered to it hereunder and reasonably believed in good faith by the Escrow Agent receives to be genuine without being required to determine the authenticity or the correctness of any written instructions contrary to fact stated therein or the instructions contained in this Agreement, propriety or validity or the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties heretoservice thereof. The Escrow Agent may resign as act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume that any Person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent by giving shall not less then ten (10) days' written notice thereof be liable to each Buyer, the Seller Group members or any beneficiary or other Person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to or related to the transfer or distribution of the Purchaser Escrow Account or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving any portion thereof, unless such instruction shall have been delivered to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective in accordance with Section 3 above and the Escrow Agent will cease has been able to satisfy any applicable security procedures as may be bound by required thereunder. The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. (e) The Escrow Agent may at its sole cost and expense consult with and act pursuant to the advice of counsel with respect to any matter relating to this Agreement on the date that is ten Agreement. (10f) days after the date of receipt of the termination notice given hereunder or on such other date as The Escrow Agent does not have any interest in the Escrow Agent, the Purchaser Amount but is serving as escrow holder only and the Company may agree uponhaving only possession thereof. All indemnities granted to It is understood that the Escrow Agent will shall be responsible for income reporting only with respect to income earned on investment of each Escrow Amount and is not responsible for any other reporting. This Section 6(f) shall survive the notwithstanding any termination of this Agreement or the resignation or termination of the Escrow Agent. (g) The Escrow Agent (and any successor escrow agent) may at any time resign and be discharged from its duties or obligations hereunder by giving sixty (60) days advance notice in writing of such resignation to Buyer and Seller, on behalf of the Seller Group, specifying a date when such resignation shall take effect and by delivering the Escrow Amount to any successor escrow agent jointly designated by Buyer and Seller, on behalf of the Seller Group, in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. Notwithstanding anything herein The resignation of the Escrow Agent will take effect on the earlier to occur of: (i) the contrarydate of the appointment of a successor escrow agent (including a court of competent jurisdiction) or (ii) the date which is sixty (60) days after the date of delivery of its written notice of resignation to Buyer and Seller, on behalf of the Seller Group (the “Resignation Date”). The resignation of the Escrow Agent and the appointment of a successor escrow agent shall be effectuated by an instrument in writing executed by the Escrow Agent, the successor escrow agent, Buyer and Seller, on behalf of the Seller Group, which shall vest the successor escrow agent with all the estates, properties, rights, powers, and duties of the Escrow Agent as if originally named as escrow agent. Upon delivery of such instrument, the Escrow Agent shall be discharged from any further duties and liability under this Agreement. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent after such thirty-day notice period, the Escrow Agent may act petition any court of competent jurisdiction for the appointment of a successor escrow agent or for other appropriate relief, or appoint a successor escrow agent of its own choice and any such resulting appointment shall be binding upon any written instructions given by Buyer and each Seller Group member, the Company Escrow Agent’s sole responsibility after the Resignation Date shall be to safe keep the Escrow Amount until receipt of a designation of successor escrow agent or a Joint Direction or in accordance with the directions of a Final Determination, at which time of delivery the Escrow Agent’s obligations hereunder shall cease and the Purchaser jointly. Notwithstanding anything terminate, subject to the contrary contained hereinprovisions of Section 11. (h) Any entity into which the Escrow Agent may be merged or converted or with which it may be consolidated, in or any entity to which all or substantially all the escrow business may be transferred, shall be the Escrow Agent under this Agreement without further act. (i) In the event of any dispute arising disagreement between the Purchaser or among Buyer and the Company Seller Group members resulting in adverse claims or between demands being made in connection with the Escrow Amount, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the portion of the Escrow Amount that is the subject of such adverse claim or demand until the Escrow Agent shall have received a Final Determination or Joint Direction directing delivery of such portion of the Escrow Amount, in which event the Escrow Agent shall disburse such portion of the Escrow Amount in accordance with such Final Determination or Joint Direction. The Escrow Agent shall act on such Final Determination or Joint Direction with respect to such portion of the Escrow Amount without further question or inquiry. Furthermore, and, without limitation, if the Escrow Agent receives a demand from Buyer or any other persons member of the Seller Group or between the legal counsel of any of them such Party with respect to the Subscription Escrow Amount and is advised by legal counsel that complying with such demand will expose Escrow Agent to liability or litigation, the Escrow Agent, at its option, file an action of interpleader at the sole cost and expense of the Escrow Agent requiring the parties to answer and litigate any claims and rights among themselves. (j) The compensation of the Escrow Agent for the services to be rendered by the Escrow Agent hereunder, as set forth on Exhibit A attached hereto shall be paid 50% by Buyer and 50% by Seller, on behalf of the Seller Group, upon execution of this Agreement and from time to time thereafter, together with, to the extent not included by the compensation set forth on Exhibit A, reimbursement for all reasonable and documented out-of-pocket expenses, disbursements and advances incurred or made by the Escrow Agent in connection with this Agreement, this Agreement or including those levied by any matters arising thereto, or with respect to the Subscription Proceeds, governmental authority which the Escrow Agent may impose, charge or pass through in performance of its sole discretion deliver duties hereunder (including reasonable, documented and interplead out-of-pocket fees, expenses and disbursements of its outside legal counsel in connection therewith). (k) No Party hereto (or any Person on such Party’s behalf) shall issue any prospectuses, press releases, public reports, promotional material, or other similar materials, which mention in any language the Subscription Proceeds into court name or the rights, powers or duties of the other Parties hereto unless the other Parties hereto mentioned therein shall first have given its specific written consent thereto. (l) Buyer and the Seller Group hereby authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depositary Trust Company and the Federal Reserve Book Entry System. (m) Buyer and Seller, on its own behalf and on behalf of the Seller Group, each hereby agrees on a joint and several basis to indemnify and hold harmless the Escrow Agent and its Affiliates and their respective successors, directors, officers, employees and agents (“Indemnitees”), from and against any and all losses, costs, damages, claims, penalties, judgments, litigation (including, without limitation, the reasonable, documented and out-of- pocket fees and expenses of outside legal counsel), expenses, obligations and liabilities (collectively “Losses”) of every kind and nature which the Escrow Agent, and its directors, officers, employees and agents, may incur, sustain or be required to pay in connection with or arising out of (i) the Escrow Agent’s execution and good faith performance of this Agreement, tax reporting or withholding, the enforcement of any rights or remedies under or in connection with this Agreement, or as may arise by reason of any good faith act, omission or error of the Indemnities, except in the case of any Indemnitee to the extent that such delivery Losses have been caused by the bad faith, willful misconduct or negligence of such Indemnitee, or (ii) its good faith following of any instructions or directions, whether joint or singular, from Buyer and/or Seller, on behalf of the Seller Group, that the Escrow Agent reasonably believes in good faith to be genuine, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof. Solely as between Buyer and interpleading will Seller, on behalf of the Seller Group, it is agreed that each shall severally and not jointly be an effective discharge responsible to pay contribution to each other such that Buyer and Seller shall be responsible respectively for 50% of such payment obligations; provided, that if the actions of either such Party are the cause of any Losses of any Indemnitee resulting in such payment obligations, such Party shall be responsible for 100% of such payment obligations. The Escrow Agent shall be paid on demand the amount of all such reasonable and documented costs, damages, judgments, attorneys’ fees, expenses, obligations and liabilities (subject to the Escrow Agent’s agreement to repay any such amounts against which it is ultimately determined that Indemnitee is not entitled to be indemnified). The reasonable, documented and out-of-pocket costs and expenses of enforcing this right of indemnification also shall be borne jointly and severally by each of Buyer and Seller, on behalf of the Seller Group (as between each other each of Buyer and Seller agreeing to be responsible for 50% of such costs and expenses; provided, that if the actions of either such Party are the cause of any Losses of any Indemnitee resulting in such costs and expenses, such Party shall be responsible for 100% of such costs and expenses). The foregoing indemnities in this paragraph shall survive the resignation or substitution of the Escrow Agent and the termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, in no event will any Party be liable for or otherwise be obligated to indemnify for any lost profits or other indirect, special, incidental, punitive or consequential damages which the parties may incur or experience by reason of having entered into or relied on this Agreement or arising out of or in connection with such Party’s duties hereunder.

Appears in 1 contract

Samples: Stock Purchase Agreement (SMART Global Holdings, Inc.)

The Escrow Agent. 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. . 4.2 The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. . 4.3 In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. . 4.4 The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. . 4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. . 4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. . 4.7 In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. . 4.8 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. . 4.9 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. . 4.10 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. . 4.11 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. . 4.12 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.

Appears in 1 contract

Samples: Escrow Agreement (Doranetti Music Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, To induce the Escrow Agent will to act honestly hereunder, it is further agreed by Buyer and in good faith and will exercise that Sellers that: 11.1 The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care, diligence care than it gives its own similar property and skill that a reasonably prudent person would exercise shall not be required to invest any Escrowed Property held hereunder except as directed in comparable circumstancesthis Agreement. The Purchaser and Uninvested Escrowed Property held hereunder shall not earn or accrue interest. 11.2 This Agreement expressly sets forth all the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason duties of the Escrow Agent's compliance in good faith Agent with the terms hereofrespect to any and all matters pertinent hereto. In case proceedings should hereafter No implied duties or obligations shall be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 read into this Agreement against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for acting or failing to act on bound by the advice provisions of counsel. any agreement among the other Parties hereto except this Agreement. 11.3 The Escrow Agent will shall not be bound in any way by any contract between the parties hereto whether liable, except for its own gross negligence or not it has notice thereof willful misconduct and, except with respect to claims based upon such gross negligence or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as willful misconduct that are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by successfully asserted against the Escrow Agent, Buyer and Sellers shall jointly and severally indemnify and hold harmless the Escrow Agent may(and any successor escrow agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in its sole discretion, obey and comply connection with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to Agreement. Without limiting the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedforegoing, the Escrow Agent is authorized and directed to disregard shall in no event be liable in connection with its sole discretion investment or reinvestment of any and all notices and warnings which may be given to cash held by it by hereunder in good faith, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the parties hereto Escrowed Property or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree loss of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof interest incident to any of the parties hereto or to such delays. This Section 11.3 shall survive notwithstanding any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. 11.4 The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Notwithstanding anything herein The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. 11.5 The Escrow Agent may act pursuant to the contraryadvice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice. 11.6 The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 11.6 shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent. 11.7 The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it. 11.8 The Escrow Agent shall not be called upon to advise any Party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. 11.9 The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property to any successor escrow agent jointly designated by the other Parties hereto in writing or to any court of competent jurisdiction pursuant to an action in interpleader, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the earlier of the date (the "Resignation Date") of the appointment of a successor (including a court of competent jurisdiction) or the date which is 30 days after the date of delivery of its written notice of resignation to the other Parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to Buyer and Sellers on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other Parties hereto or a Final Determination. 11.10 The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof. 11.11 In the event of any disagreement between Buyer and Sellers resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent may act upon any written instructions given by shall be entitled to retain the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, Escrowed Property until the Escrow Agent may shall have received a Final Determination directing delivery of the Escrowed Property or joint written instructions executed by Buyer and Sellers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such Final Determination or joint written instructions. The Escrow Agent shall act on such Final Determination or joint written instructions without further question. 11.12 The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,000.00 at the time of execution of this Agreement and $50.00 per transfer of the Escrow Shares, and reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its sole discretion deliver duties hereunder (including reasonable fees, expenses and interplead the Subscription Proceeds into court disbursements of its counsel). Buyer shall pay all of such fees and such delivery expenses identified in this Section 11.12. 11.13 No prospectuses, press releases, reports and interpleading will be an effective discharge to promotional material, or other similar materials which mention in any language the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other Parties hereto or on such Parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto; provided, however, that the Escrow Agent acknowledges that Buyer may file a copy of this Agreement as an exhibit with Buyer's filings required under the Securities Exchange Act of 1934, as amended, and the Escrow Agent consents to the appearance of its name in such filings.

Appears in 1 contract

Samples: Stock Purchase Agreement (Team Inc)

The Escrow Agent. (a) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In exercising no event shall the rightsEscrow Agent be liable (i) for acting in accordance with or relying upon (and shall be fully protected in relying upon) any instruction, duties notice, demand, certificate or document from each of the Interested Parties, (ii) for any indirect, consequential, punitive or special damages, even if advised of the possibility thereof, (iii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by it in good faith, or (iv) for an amount in excess of the value of the Escrow Property. (b) As security for the due and punctual performance of any and all of the Interested Parties’ obligations prescribed to the Escrow Agent hereunder, now or confirmed hereafter arising, the Interested Parties, individually and collectively, hereby pledge, assign and grant to the Escrow Agent a continuing security interest in, and a lien on and right of setoff against, the Escrow Property and all Distributions thereon, investments thereof or additions thereto (whether such additions are the result of deposits by this AgreementDepositor or the investment of Escrow Property or otherwise). If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will hereunder are not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreementpromptly paid when due, the Escrow Agent may continue to hold reimburse itself therefor from the Subscription Proceeds until the lawful determination Escrow Property, and may sell, convey or otherwise dispose of any Escrow Property for such purpose. The security interest and setoff rights of the issue between Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against the Interested Parties and all third parties hereto. in accordance with the terms of this Escrow Agreement. (c) The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each consult with legal counsel at the expense of the Purchaser or the Company. The Purchaser Interested Parties as to any matter relating to this Escrow Agreement, and the Company may terminate the Escrow Agent by giving to the shall not incur any liability in acting in good faith in accordance with any written advice from such counsel. (d) The Escrow Agent a notice shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of termination executed by each of them not less than ten (10) days prior to any occurrence beyond the proposed date of termination. The resignation or termination control of the Escrow Agent will be effective and (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war or terrorism, or the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt unavailability of the termination notice given hereunder Federal Reserve Bank wire or on such telex or other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement wire or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentcommunication facility).

Appears in 1 contract

Samples: Escrow Agreement (NYTEX Energy Holdings, Inc.)

The Escrow Agent. In exercising the rightsAny annual fees, duties and obligations prescribed or confirmed by this Agreementother expenses, the due to Escrow Agent will act honestly and in good faith and will exercise that degree connection with its performance of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or shall be paid by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified one half by other good Seller and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingsone-half by Purchaser. The Escrow Agent will have no responsibility shall not be liable for any act or omission to act under this Escrow Agreement, except for its own gross negligence or willful misconduct. The Escrow Agent may decline to act and shall not be liable for failure to act if in respect of loss of the Subscription Proceeds except the duty doubt as to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agentits duties under this Agreement. The Escrow Agent may act on upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Escrow Agreement and applicable laws, and the advice Escrow Agent is not charged with knowledge of counsel but will not be responsible for acting or failing to act on the advice of counselany duties or responsibilities in connection with any other document or agreement. The Escrow Agent will not be bound in shall have the right at any way time to resign hereunder by any contract between giving written notice of its resignation to the parties hereto, at least thirty (30) days prior to the date specified for such resignation to take effect. If the parties hereto whether or do not it has notice thereof or of its terms and conditions and the only dutydesignate a successor escrow agent within said third (30) days, liability and responsibility of the Escrow Agent will may appoint another nationally recognized bank or trust company as successor escrow agent. Upon the effective date of such resignation, and provided that the successor escrow agent agrees in writing to be to hold bound by the Subscription Proceeds as herein directed and to pay and deliver the same to such persons terms hereof, all cash and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for payments and all purposes under this Agreement insofar as other property then held by the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it hereunder shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring delivered by it to its attentionsuch successor escrow agent or as otherwise shall be designated in writing by both Seller and Purchaser. In the event that the Subscription Proceeds are attached, garnished Escrow Agent should at any time be confronted with inconsistent or levied upon under any court order, conflicting claims or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act demands by the Escrow Agentparties hereto, the Escrow Agent may, shall have the right to interplead said parties in its sole discretion, obey any court of competent jurisdiction and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any request that such writs, order, judgment or decrees it will not be liable to any court determine such respective rights of the parties hereto or with respect to any other personthis Escrow Agreement, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise providedand upon doing so, the Escrow Agent is authorized and directed shall be released from any obligations or liability to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree either party as a consequence of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements claims or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentdemands.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Inland Real Estate Income Trust, Inc.)

The Escrow Agent. In exercising (a) City National Bank, a national banking association, is hereby appointed as Escrow Agent in accordance with the rightsterms and conditions set forth herein, duties and obligations prescribed or confirmed by this Agreementthe Escrow Agent hereby accepts such appointment. (b) Subject to the other terms and conditions hereof, the Escrow Agent hereby irrevocably declares that it will act honestly hold all right, title and interest in good faith and will exercise that degree to the Escrow Shares and any Other Escrow Property in escrow for the use and benefit of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant Xx. Xxxxxxxxx upon the terms set forth herein. (c) The Escrow Agent shall not be concerned with, nor shall it have any duties or obligations under the Notice Procedures or the Employment Agreement, but instead its sole duties shall be to comply with this Escrow Agreement and agree any instructions given pursuant hereto. Further, the Escrow Agent shall not be deemed to have knowledge of any matter set forth in such agreements that has not been set forth in this Escrow Agreement. (d) Xx. Xxxxxxxxx agrees to provide to the Escrow Agent such stock powers, with signatures appropriately guaranteed, and other instruments of transfer as the Escrow Agent may from time to time reasonably request for purposes of administering the escrows created hereunder. To that end, Xx. Xxxxxxxxx further grants to the Escrow Agent the following power of attorney: POWER OF ATTORNEY Know all persons by these presents, that the grantor of this power of attorney constitutes and at appoints City National Bank his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and xxxxx, in any and all times hereafter well capacities, to sign any and truly to saveall instruments of transfer for the purposes of the Escrow Agreement, defend dated as of January 26, 2000, among XXXX.XXX, Inc., Xxxxxx X. Xxxxxxxxx and keep harmless and fully indemnify the City National Bank, as Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto Escrow Shares or Other Escrow Property (as defined in such Escrow Agreement) of the grantor of this power of attorney, granting unto said attorney-in-fact and agent, full power and authority to any other do and perform to all intents and purposes as the grantor of this power of attorney might do in person, firm hereby ratifying and confirming all that said attorney-in- fact and agent, or corporation by reason of such complianceits substitute or substitutes, notwithstanding that such writs, orders, judgments may lawfully do or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease cause to be bound done by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentvirtue thereof.

Appears in 1 contract

Samples: Escrow Agreement (Jfax Com Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, To induce the Escrow Agent will to act honestly hereunder, it is further agreed by NYTEX, Xxxxx Xxxxxxx and Seller Representative that: (a) The Escrow Agent shall not be required to invest any Escrowed Property held hereunder except as directed in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstancesthis Agreement. The Purchaser and Uninvested Escrowed Property held hereunder shall not earn or accrue interest. (b) This Agreement expressly sets forth all the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason duties of the Escrow Agent's compliance in good faith Agent with the terms hereofrespect to any and all matters pertinent hereto. In case proceedings should hereafter No implied duties or obligations shall be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 read into this Agreement against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible bound by the provisions of any agreement among the other Parties hereto except this Agreement. (c) The Escrow Agent shall have only those duties as are specifically provided herein which shall be deemed purely ministerial in nature, and shall under no circumstances be deemed a fiduciary for acting or failing any of the Parties to act on the advice of counselthis Agreement. The Escrow Agent will not never be bound required to advance its own funds or incur personal financial liability in performing its duties under this Agreement. The Escrow Agent shall have the right to perform any way by any contract between the parties hereto whether or not it has notice thereof or of its terms duties hereunder through agents, attorneys, custodians or nominees. This Agreement sets forth all matters pertinent to the Escrow Account contemplated hereunder, and conditions and the only duty, liability and responsibility no additional obligations of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as inferred from the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner terms of making any notice or demand provided for under this Agreement or of any other Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, INCLUDING ITS OWN NEGLIGENCE, BUT EXCLUDING ITS OWN BAD FAITH, GROSS NEGLIGENCE AND WILLFUL MALFEASANCE. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANY PARTY FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR LOSS OF BUSINESS, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION. Without limiting the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agentforegoing, the Escrow Agent mayshall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its sole discretion, obey and comply with all writs, orders, judgments gross negligence or decrees so entered willful misconduct) in the investment or issued, whether with reinvestment of the Escrowed Property or without jurisdiction, any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination removal of the Escrow Agent. (d) THE ESCROW AGENT IS HEREBY SEVERALLY, AND NOT JOINTLY, INDEMNIFIED AND HELD HARMLESS BY NYTEX, XXXXX XXXXXXX AND SELLER REPRESENTATIVE FROM ALL LOSSES, LIABILITIES, COSTS AND EXPENSES, INCLUDING ATTORNEY FEES AND EXPENSES, WHICH MAY BE INCURRED BY IT AS A RESULT OF ITS ACCEPTANCE OF THE ESCROW ACCOUNT OR ARISING FROM THE PERFORMANCE OF ITS DUTIES HEREUNDER, UNLESS SUCH LOSSES, LIABILITIES, COSTS AND EXPENSES RESULTED FROM THE ESCROW AGENT’S BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MALFEASANCE. Notwithstanding anything herein SUCH INDEMNIFICATION SHALL SURVIVE THE ESCROW AGENT’S RESIGNATION OR REMOVAL, OR THE TERMINATION OF THIS AGREEMENT. (e) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (f) The Escrow Agent may act pursuant to the contraryadvice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice. (g) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(g) shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent. (h) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it. (i) The Escrow Agent shall not be called upon to advise any Party as to the wisdom in selling or retaining or taking or refraining from taking any action with respect to any securities or other property deposited hereunder. (j) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property to any successor escrow agent jointly designated by the other Parties hereto in writing or to any court of competent jurisdiction. The resignation of the Escrow Agent will take effect on the date (the “Resignation Date”) which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other Parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to each of NYTEX, Xxxxx Xxxxxxx and Seller Representative on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent’s sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other Parties hereto. (k) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely in good faith without any liability upon the contents thereof. (l) In the event of any disagreement between NYTEX, on the one hand, and Seller Representative and Xxxxx Xxxxxxx, on the other hand, resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent may act upon any written instructions given by shall be entitled to retain the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, Escrowed Property until the Escrow Agent may shall have received (i) a Final Determination (as defined below) directing delivery of the Escrowed Property or (ii) a written agreement executed by each of NYTEX, Xxxxx Xxxxxxx and Seller Representative directing delivery of the Escrowed Property, in its sole discretion deliver which event the Escrow Agent shall disburse the Escrowed Property in accordance with such Final Determination or agreement. A “Final Determination” shall mean a final, non-appealable judgment of a court of competent jurisdiction and interplead the Subscription Proceeds into court and such delivery and interpleading will shall be accompanied by an effective discharge opinion of counsel to the effect that such judgment is a final, non-appealable judgment of a court of competent jurisdiction. The Escrow AgentAgent shall act on such Final Determination or agreement without further question.

Appears in 1 contract

Samples: Escrow Agreement (NYTEX Energy Holdings, Inc.)

The Escrow Agent. In exercising 6.8.1 shall not be required or under any liability or obligation to take any legal action under this Escrow Agreement or to require that the rightsCompanies comply with any provision of this Escrow Agreement; 6.8.2 shall not be required or under any liability or obligation to monitor or enquire as to the performance of the Companies’ obligations under this Escrow Agreement or the Share Exchange Agreement and shall be entitled to assume without enquiry that each such Company is duly performing and observing all its respective obligations; 6.8.3 shall not be liable for non-delivery of the PPRW Deliveries, duties and obligations prescribed LUX Deliveries or confirmed by CYP Deliveries, or for the failure of any person to make any payment of funds; 6.8.4 shall not be bound to attempt to enforce delivery of the PPRW Deliveries, LUX Deliveries or CYP Deliveries; 6.8.5 shall not be regarded or treated for any purpose as having any notice or knowledge of any of the provisions of any arrangements relevant to the transactions contemplated or referred to in this Escrow Agreement which are not expressly set out in this Escrow Agreement, and, except as provided in Section 7.4 below, shall be entitled to have regard only to the express terms of this Escrow Agreement in the discharge of its duties under this Escrow Agreement and the exercise of any of its rights under this Escrow Agreement; 6.8.6 shall have no obligation to ensure that the terms of this Escrow Agreement are consistent with the terms of the Share Exchange Agreement; 6.8.7 may, in relation to this Escrow Agreement, act on the opinion or advice of, or any information obtained from, any lawyer or other professional person whether obtained by the Escrow Agent will act honestly or any Company and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for any loss occasioned by so acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain (whether or not the person advice, opinion or persons who have executedinformation is accurate or authentic or contains some error), signed and any such advice, opinion or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that information may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar sent to or obtained by the Escrow Agent by such means as the Escrow Agent thinks fit; 6.8.8 may refrain from doing anything which would or might be contrary to any law of any jurisdiction or any directive or regulation of any agency or any state or supranational body and may do anything which is concerned that necessary to comply with any such law, directive or regulation; 6.8.9 may refrain from doing anything in the said documents are deposited with performance of its duties under this Escrow Agreement which would or might otherwise render it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed liable to have assumed any person or require it to incur any financial liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring require it to use or risk its attention. In own funds if it believes that reimbursement of such funds or adequate indemnity against such risk is not assured; 6.8.10 shall promptly seek clarification from the Companies in the event that it believes its correct course of action under the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision terms of this Escrow Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it unclear; and 6.8.11 shall not be liable or deemed to be in default for any failure or delay in performance of any duty under this Escrow Agreement arising in whole or in part from or caused in whole or in part by reason thereof to any circumstances beyond its direct and reasonable control including, without limitation, acts of the parties hereto God, partial or to any complete failure of electrical power or computer services or communication services, acts of civil or military authority, sabotage, terrorism, war, civil disturbance or riot, strike or other personindustrial dispute, firmnational emergency, association flood, earthquake, fire or corporationother catastrophe, even if thereafter any such or governmental, judicial or regulatory order, rule, regulation, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentact.

Appears in 1 contract

Samples: Escrow Agreement (Premier Power Renewable Energy, Inc.)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the The Escrow Agent will act honestly shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successorsnature, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or no other duties shall be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingsimplied. The Escrow Agent will have has no responsibility in respect knowledge of, nor any requirement to comply with, the terms and conditions of loss any other agreement between the Parties, nor shall the Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Subscription Proceeds except Parties, the duty to exercise such care in terms and conditions of this Agreement shall control the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to actions of the Escrow Agent. The Escrow Agent may act on conclusively rely upon any written notice, document, instruction or request delivered by the advice Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of counsel but will not any kind and the Escrow Agent shall be responsible for acting under no duty to inquire into or failing to act on investigate the advice validity, accuracy or content of counselany such document, notice, instruction or request. The Escrow Agent will shall not be bound liable for any action taken, suffered or omitted to be taken by it in any way by any contract between good faith except to the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of extent that the Escrow Agent will be Agent’s gross negligence or willful misconduct was the cause of any direct loss to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set fortheither Party. The Escrow Agent will not be required to pass upon the sufficiency of may execute any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or its powers and perform any of them, its duties hereunder directly or that they are the same persons named therein through affiliates or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attentionagents. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives instructions, claims or demands from any written instructions contrary to Party hereto which conflict with the instructions contained in provisions of this Agreement, the Escrow Agent may continue shall be entitled either to hold the Subscription Proceeds (a) refrain from taking any action until the lawful determination it shall be given a written direction executed by Authorized Representatives of the issue between the parties heretoJuniper which eliminates such conflict or (b) file an action in interpleader. The Escrow Agent shall have no duty to solicit any payments which may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser be due it or the Company. The Purchaser and Fund, including the Company may terminate Escrow Deposit nor shall the Escrow Agent by giving have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent a notice be liable for special, incidental, punitive, indirect or consequential loss or damage of termination executed by each of them not less than ten any kind whatsoever (10) days prior to the proposed date of termination. The resignation or termination of including lost profits), even if the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt has been advised of the termination notice given hereunder likelihood of such loss or on such other date as the Escrow Agent, the Purchaser damage and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination regardless of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event form of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentaction.

Appears in 1 contract

Samples: Escrow Agreement (Fifth Third Capital Holdings, LLC)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (101) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent shall dispose of all or any part of the Escrow Shares as directed by a writing jointly signed by the Shareholders' Agent and Parent within two (2) business days of receipt of such notice. The reasonable fees and expenses of the Escrow Agent in connection with the preparation of this Escrow Agreement and its execution and performance of this Escrow Agreement as set forth on SCHEDULE II hereto shall be borne out of the Escrow Shares. The Escrow Agent shall not be liable for any act or failure to act under this Escrow Agreement, including any and all claims made against the Escrow Agent as a result of its holding the Escrow Shares or Escrow Funds in its own name, except for its own negligence, bad faith or willful misconduct. Subject to the foregoing, the Escrow Agent shall not be liable for, and Parent and the Shareholders shall, jointly and severally, indemnify and hold harmless the Escrow Agent and its directors, employees, officers, agents, successors and assigns against any losses or claims (including reasonable out-of-pocket expenses and attorney fees) arising out of any action taken or omitted hereunder and reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent or reasonably incurred by it in connection with its acceptance of this appointment or performance of its duties hereunder. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Escrow Agreement. The Escrow Agent may act upon any written instructions given instrument or signature (including wire transfer instructions) believed by it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to the Company express duties set forth in this Escrow Agreement, each of which duties are ministerial in nature, and applicable law and the Purchaser jointly. Notwithstanding anything Escrow Agent shall not be deemed to be a fiduciary and is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including without limitation, the Merger Agreement; and the parties hereto agree that the use of defined terms incorporated by reference to the contrary contained herein, in Merger Agreement is solely for the event convenience of any dispute arising between the Purchaser other parties and the Company Escrow Agent may rely on the use of defined terms in any communication received by it. In no event will the Escrow Agent be liable for punitive, special or between consequential damages or losses (including lost profits) whatsoever, even if the Escrow Agent has been informed of the likelihood of such damages or losses. (2) The Escrow Agent shall have the right at any other persons or between any time to resign hereunder by giving written notice of them with respect its resignation to the Subscription Agreementparties hereto, this Agreement at the addresses set forth herein or any matters arising theretoat such other address as the parties shall provide, or with respect at least thirty days prior to the Subscription Proceedsdate specified for such resignation to take effect. In such event Parent shall with the approval of the Shareholders' Agent, which approval shall not be unreasonably withheld, appoint a successor escrow agent within that thirty-day period; if Parent does not designate a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrow Shares and Escrow Fund then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by Parent and the Shareholders' Agent. If no successor escrow agent is appointed as provided herein, the Escrow Agent may apply to a court of competent jurisdiction for appointment of a successor escrow agent. (3) In the event that the Escrow Agent should at any time be (i) confronted with inconsistent or conflicting claims or demands by the other parties hereto or (ii) unsure of its sole discretion deliver duties hereunder, the Escrow Agent shall have the right to inter plead the parties in any Delaware court or any court of competent jurisdiction and interplead request that such court determine the Subscription Proceeds into court respective rights of the parties with respect to this Escrow Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to the other parties as a consequence of any such claims or demands. The Escrow Agent may consult counsel satisfactory to it, including in-house counsel, and such delivery and interpleading will be an effective discharge protected in respect of any action taken or omitted in reliance thereon. (4) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Escrow Agreement shall be deemed to impose upon the Escrow AgentAgent any duty to qualify to do business in any jurisdiction other than Delaware or to act as fiduciary. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Escrow Agreement or of any amendment or supplement hereto.

Appears in 1 contract

Samples: Escrow Agreement (Wit Soundview Group Inc)

The Escrow Agent. In exercising the rights(a) The duties, duties responsibilities and obligations prescribed or confirmed by this Agreement, the of Escrow Agent will act honestly shall be limited to those expressly set forth herein and in good faith and will exercise that degree of careno duties, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and responsibilities or obligations shall be inferred or implied against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for acting subject to, nor required to comply with, any other agreement, including but not limited to the PSA Agreement, to which W&T or failing BEEOO is a party, even though reference thereto may be made herein, or to act on the advice of counselcomply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from W&T or BEEOO. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will shall not be required to pass upon expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the sufficiency performance of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or its duties hereunder. (b) If at any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as time the Escrow Agent is concerned that the said documents are deposited served with it as herein specified by the parties executing this Agreement with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Agent. In no event will Property (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow AgentProperty), the Escrow Agent may, is authorized to comply therewith in any manner it or legal counsel of its sole discretion, obey own choosing deems appropriate; and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If if the Escrow Agent obeys and complies with any such writs, judicial or administrative order, judgment judgment, decree, writ or decrees it will other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto or to any other personperson or entity even though such order, firm judgment, decree, writ or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees process may be subsequently reversedmodified or vacated or otherwise determined to have been without legal force or effect. (c) The Escrow Agent shall not be liable to BEEOO or W&T for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In no event shall the Escrow Agent be liable to BEEOO or W&T (i) for acting in accordance with or conclusively relying upon any instruction, modifiednotice, annulleddemand, certificate or document from W&T or BEEOO or any entity acting on behalf of W&T or BEEOO, (ii) anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, or (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Property, or any loss of interest or income incident to any such delays. (d) The Escrow Agent shall be entitled to payment of the fees set aside forth in Exhibit “B” hereto for all services rendered by it hereunder. If any fees, expenses or vacated. Except as herein otherwise providedcosts incurred by, or any obligations owed to, the Escrow Agent is authorized and directed to disregard in or its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall counsel hereunder are not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreementpromptly paid when due, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate reimburse itself therefor from the Escrow Agent by giving to the Escrow Agent a notice Property and may sell, liquidate, convey or otherwise dispose of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination any investment in respect of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on Property for such other date as the Escrow Agent, the Purchaser and the Company may agree uponpurpose. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder. (e) The Escrow Agent may consult with legal counsel of its own choosing, as to any matter relating to this Agreement, including review for any request for disbursement hereunder or review of monthly reports or invoices, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility). (f) The Escrow Agent shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (g) The Escrow Agent shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or endorsement. The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to Escrow Property deposited hereunder. (h) The Escrow Agent shall not be under any duty to give the Escrow Property held by it hereunder any greater degree of care than it gives its own similar property and interplead shall not be required to invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest. (i) At any time the Subscription Proceeds into Escrow Agent may request an instruction in writing from W&T and BEEOO and may, at its own option, include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after W&T and BEEOO receives the Escrow Agent’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested. (j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by facsimile or electronic transmission, the Escrow Agent, absent gross negligence or willful misconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of W&T or BEEOO or is not in the form W&T or BEEOO sent or intended to send (whether due to fraud, distortion or otherwise), if the document is signed by one of the respective representatives shown on Exhibit “A”. W&T and BEEOO shall release the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur as a result of the Escrow Agent acting in accordance with any such communication. (k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by W&T and BEEOO which eliminates such ambiguity or uncertainty. (l) In the event of any dispute between or conflicting claims among W&T or BEEOO with respect to any Escrow Property, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such Escrow Property so long as such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in any way for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until, in its sole discretion, either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and such delivery against any and interpleading will all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be an effective discharge accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such interpleader proceeding shall be paid by, and shall be deemed a joint obligation of, W&T and BEEOO. (m) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may conclusively rely without any liability upon the contents thereof. (n) W&T shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Property paid to W&T hereunder and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. W&T and BEEOO will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on the Escrow Property and will not be responsible for any other reporting. (o) The Escrow Agent shall provide to W&T and BEEOO monthly statements identifying transactions, transfers or holdings of Escrow Property and each such statement shall be deemed to be correct and final upon receipt thereof by W&T and BEEOO unless the Escrow Agent is notified in writing, by W&T or BEEOO, to the contrary within thirty (30) business days of the date of such statement, W&T and BEEOO agree to waive their right to receive trade confirmations as they occur.

Appears in 1 contract

Samples: Non Operated Escrow Agreement (Black Elk Energy Finance Corp.)

The Escrow Agent. In exercising (a) Notwithstanding anything herein to the rights, duties and obligations prescribed or confirmed by this Agreementcontrary, the Escrow Agent will act honestly and in good faith and will exercise that degree shall promptly dispose of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason part of the Escrow Agent's compliance in good faith with Shares as directed by a writing jointly signed by the terms hereofShareholder Representative and the Buyer. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, The reasonable fees and expenses of the Escrow Agent will not in connection with its execution and performance of this Agreement as set forth on Schedule II hereto shall be obliged to defend any such action or submit its rights to borne by the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingsBuyer. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty shall not be liable for any act or failure to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to act under this Agreement, including any and all claims made against the Escrow AgentAgent as a result of its holding the Escrow Shares in its own name, except for its own gross negligence or willful misconduct. The Escrow Agent shall not be liable for, and the Buyer shall indemnify and hold harmless the Escrow Agent and its directors, employees, officers, agents, successors and assigns against, any losses or claims (including reasonable out-of-pocket expenses) arising out of any action taken or omitted in good faith hereunder and reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent or reasonably incurred by it in connection with its acceptance of this appointment or performance of its duties hereunder. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Agreement. The Escrow Agent may act on upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Agreement and applicable law and the advice Escrow Agent is not charged with knowledge of counsel but will or any duties or responsibilities in connection with any other document or agreement, including without limitation, the Merger Agreement. (b) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty days prior to the date specified for such resignation to take effect. In such event the Buyer shall with the approval of the Shareholder Representative, which approval shall not be unreasonably withheld, appoint a successor escrow agent within that thirty-day period; if the Buyer does not designate a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrow Fund then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by the Buyer and the Shareholder Representative. (c) In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the other parties hereto, the Escrow Agent shall have the right to interplead the parties in any court of competent jurisdiction and request that such court determine the respective rights of the parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to the other parties as a consequence of any such claims or demands. (d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as fiduciary or otherwise in any jurisdiction other than The Commonwealth of Massachusetts. The Escrow Agent shall not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will and shall not be bound in any way by any contract between under a duty to examine, inquire into or pass upon the parties hereto whether validity, binding effect, execution or not it has notice thereof sufficiency of this Agreement or of its terms and conditions and the only duty, liability and responsibility of any amendment or supplement hereto. (e) Neither the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of nor any of the Subscription Proceeds its directors, officers or employees shall be liable to ascertain whether anyone for any error of judgment, or not the person for any act done or persons who have executed, signed step taken or otherwise issued or authenticated the said documents have authority omitted to so execute, sign or authorize, issue or authenticate the said documents be taken by it or any of themits directors, officers or employees, or that they are for any mistake of fact or law, or for anything which it, or any of its directors, officers or employees, may do or refrain from doing in connection with or in the administration of this Agreement, unless and except to the extent the same persons named therein constitutes gross negligence or otherwise to pass upon any requirement willful misconduct on the part of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will shall the Escrow Agent be liable for any indirect, punitive, special or consequential damages, or any amount of in excess of the value of the Escrow Fund (as of the date of the action or omission giving rise to liability). (f) The Escrow Agent may consult with, and obtain advice from, legal counsel (including, without limitation, in-house counsel) with respect to any question as to any of the provisions hereof or its duties hereunder, or any matter relating hereto, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Escrow Agent in good faith in accordance with the opinion and directions of such counsel. (g) The Escrow Agent shall not be deemed to have assumed notice of any fact, claim or demand with respect hereto unless actually known by an officer charged with responsibility for administering this Agreement or unless in writing received by the Escrow Agent and making specific reference to this Agreement. (h) No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds, or to take any legal or other action hereunder which might in its judgment involve it in, or require it to incur in connection with the performance of its duties hereunder, any expense or any financial liability unless it shall be furnished with indemnification acceptable to it. (i) Any permissive right of the Escrow Agent to take any action hereunder shall not be construed as duty. (j) All indemnifications contained in this Agreement shall survive the resignation or removal of the Escrow Agent, and shall survive the termination of this Agreement. (k) The Escrow Agent is not responsible for the recitals appearing in this Agreement. The recitals shall be deemed to be statements of the Buyer and the Shareholders. (l) The Escrow Agent has no responsibility for the sufficiency, form and manner sufficiency of making any notice or demand provided for under this Agreement or of for any purpose. Without limiting the identity of the persons executing the sameforegoing, but it shall be sufficient if any writing purporting security interest is referred to herein, the Escrow Agent shall have no responsibility for, and makes no representation or warranty as to, the creation, attachment or perfection of any such security interest or the sufficiency of this Agreement therefor. (m) Nothing in this Agreement shall obligate the Escrow Agent to qualify to do business or act in any jurisdiction in which it is not presently qualified to do business, or be such a notice, demand or protest is served deemed to impose upon the Escrow Agent the duties of a trustee. The duties of the Escrow Agent under this Agreement are strictly ministerial in nature. (n) In no event shall the Escrow Agent have any manner sufficient liability for any failure or inability of any of other party to bring it perform or observe its duties under the Agreement, or by reason of a breach of this Agreement by any other party. In no event shall the Escrow Agent be obligated to its attentiontake any action against any other party to compel performance hereunder. (o) The Escrow Agent shall in no instance be obligated to commence, prosecute or defend any legal proceedings in connection herewith. (p) Whenever the terms hereof call for any notice, payment or other action on a day which is not a business day, such payment or action may be taken, or such notice given, as the case may be, on the next succeeding business day. As used herein, "business day" shall mean any day other than a Saturday or Sunday, or any other day on which the Escrow Agent is closed for business. (q) In the event that the Subscription Proceeds are attached, garnished of any ambiguity or levied upon uncertainty under any court orderthis Agreement, or if the delivery of such property is stayed in any notice, instruction, or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act other communication received by the Escrow AgentAgent hereunder, the Escrow Agent may, in its sole discretion, obey refrain from taking action, and comply may retain the Escrow Fund, until and unless it receives written instruction signed by all Interested Parties which eliminates such uncertainty or ambiguity. (r) If at any time Escrow Agent is served with all writsany judicial or administrative order, ordersjudgment, judgments decree, writ or decrees so entered other form of judicial administrative process which in any way relates to or issued, whether with affects the Escrow Fund (including but not limited to orders of attachment or without jurisdiction, notwithstanding any provision garnishment or other forms of this Agreement levies or injunctions or stays relating to the contrary. If Escrow Fund), Escrow Agent is authorized to comply therewith in any manner as it or its legal counsel deems appropriate; and if the Escrow Agent obeys and complies with any such writs, judicial or administrative order, judgment judgment, decree, writ or decrees it will other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm person or corporation by reason of such compliance, entity notwithstanding that though such writsorder, ordersjudgment, judgments decree, writ or decrees process may be subsequently reversed, modified, annulled, set aside or aside, vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed found to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent have been without proper jurisdiction, and it is hereby authorized or otherwise determined to comply with and obey such orders, judgements have been without legal force or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agenteffect.

Appears in 1 contract

Samples: Escrow Agreement (Blais John F Jr)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10a) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Shares as directed by a writing jointly signed by the Stockholder Representative and the Buyer. The reasonable fees and expenses of the Escrow Agent in connection with the preparation of this Escrow Agreement and its execution and performance of this Escrow Agreement as set forth on Schedule II hereto shall be borne by the Buyer. The Escrow Agent shall not be liable for any act or failure to act under this Escrow Agreement, including any and all claims made against the Escrow Agent as a result of its holding the Escrow Materials in its own name, except for its own gross negligence or willful misconduct. The Escrow Agent shall not be liable for, and the Buyer and the Company Stockholders shall, jointly and severally, indemnify and hold harmless the Escrow Agent against any losses or claims (including reasonable out-of-pocket expenses and attorney fees) arising out of any action taken or omitted hereunder and reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent or reasonably incurred by it in connection with its acceptance of this appointment or performance of its duties hereunder, except in the event such loss or claim arises out of an action or omission of the Escrow Agent which constitutes gross negligence or willful misconduct. The Escrow Agent may decline to act and shall not be liable for failure to act if in reasonable doubt as to its duties under this Escrow Agreement, but only for so long as reasonably necessary for the Escrow Agent to take reasonable measures (including the measures described under Section 9(c) hereof) to determine such duties. The Escrow Agent may act upon any instrument or signature (including wire transfer instructions) reasonably believed by it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Escrow Agreement and applicable law and the Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including without limitation, the Merger Agreement (other than defined terms in the Merger Agreement that are not otherwise defined herein). (b) The Escrow Agent shall have the right at any time to resign hereunder by giving written instructions given notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty days prior to the date specified for such resignation to take effect. In such event the Buyer shall appoint a successor escrow agent acceptable to the Stockholder Representative (which acceptance may not be unreasonably withheld) by the Company and date of the Purchaser jointlyexpiration of such thirty-day period. Notwithstanding anything to the contrary contained If no successor escrow agent is appointed as provided herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may apply to a court of competent jurisdiction for appointment of a successor escrow agent. From and after the date of the appointment of a successor escrow agent in accordance with the terms hereof, such successor escrow agent shall be deemed the "Escrow Agent" for all purposes hereunder. (c) In the event that the Escrow Agent should at any time be (i) confronted with inconsistent or conflicting claims or demands by the other parties hereto or (ii) unsure of its sole discretion deliver duties hereunder, the Escrow Agent shall have the right to inter plead the parties in any court of competent jurisdiction and interplead request that such court determine the Subscription Proceeds into court respective rights of the parties with respect to this Escrow Agreement. (d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Escrow Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business in any jurisdiction other than The Commonwealth of Massachusetts or to act as fiduciary. (e) Notwithstanding anything to the contrary, the Escrow Agent is not required to release or distribute Escrow Materials sooner than two (2) business days after the Escrow Agent has received the requisite notices or paperwork in good form, or passage of the applicable claims period or release date, as the case may be. (f) Notwithstanding anything herein to the contrary, at any time that the Escrow Agent is authorized or directed or otherwise required to make a disbursement or distribution of the Escrow Materials, the Escrow Agent may refrain from making such delivery disbursement or distribution, without liability, if and interpleading will be an effective discharge to the extent that there are any fees or expenses then due to the Escrow AgentAgent by the party to which such disbursement or distribution is to be made pursuant hereto. Upon receipt of payment for such fees or expenses, the Escrow Agent shall promptly make such disbursement or distribution.

Appears in 1 contract

Samples: Escrow Agreement (Sycamore Networks Inc)

The Escrow Agent. In exercising The reasonable fees and expenses of the rightsEscrow Agent ---------------- in connection with its execution and performance of this Escrow Agreement as set forth on Exhibit B hereto shall be borne by Premiere and the Stockholders --------- equally. The Escrow Agent shall be entitled to such rights and shall perform such duties of the Escrow Agent as set forth herein, duties including but not limited to the following (collectively, the "Duties"): (a) The Escrow Agent shall hold and obligations prescribed safeguard the Escrow during the Escrow Period, shall treat such Escrow as an escrow fund in accordance with the terms of this Escrow Agreement and not as the property of Premiere, and shall hold and dispose of the Escrow only in accordance with the terms of this Escrow Agreement. (b) The Escrow Agent shall distribute to the Stockholders all material relating to a vote of holders of Premiere Common Stock that the Escrow Agent receives from the Premiere or confirmed any third party, and the Stockholders shall, in such Stockholder's sole discretion, vote such shares and execute such documents as may be necessary to permit such shares to be voted by this Agreementthe Stockholders in accordance with their respective beneficial interests. The Escrow Agent shall have no right to vote the Escrow Shares, except to the extent so directed to do so by the beneficial owner of the respective shares. (c) Promptly following termination of the Escrow Period as set forth in Section 2 hereof, the Escrow Agent will act honestly and in good faith and will exercise that degree shall deliver to SunTrust Bank, Atlanta, Trust Company Tower, 00 Xxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 Attn: Xxxxxxx Xxxxxxx, the transfer agent of carethe Premiere Common Stock (the "Transfer Agent"), diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify certificate representing the Escrow AgentShares with instructions for the Transfer Agent to issue to each Stockholder a new certificate, its successorssubject to Section 5(d) hereof, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which in the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account name of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason each Stockholder representing each Stockholder's pro rata portion of the Escrow Agent's compliance Shares at the time of such distribution based on Exhibit A to this Escrow --------- Agreement, provided, however, that in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting event that there are claims by Premiere for Losses outstanding at the Subscription Proceedstime of the termination of the Escrow Period, the Escrow Agent will not be obliged to defend any shall retain an amount of such action or submit its rights Escrow Shares sufficient in the reasonable judgment of Premiere, subject to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss objection of the Subscription Proceeds except Escrow Committee and subsequent resolution of the duty to exercise such care matter in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged manner provided in Section 3 above, to satisfy any unsatisfied claims for Losses specified in any notice by Premiere theretofore delivered to the Escrow Agent. The Committee and Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing prior to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility termination of the Escrow Agent will be Period with respect to hold facts and circumstances existing prior to expiration of the Subscription Proceeds as herein directed Escrow Period, and to pay and deliver the same to expenses as provided in this Escrow Agreement. As soon as all such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who claims have executedbeen fully resolved, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned shall deliver to the Stockholders any and all of the Escrow Shares and other property remaining in the Escrow and not required to satisfy such claims and expenses. Each Stockholder shall receive that number of Escrow Shares which bears the said documents are deposited with it same relationship to the total number of Escrow Shares in the Escrow and available for distribution as herein specified the number of Escrow Shares set forth opposite the name of each such Stockholder on Exhibit A hereto bears to the total number of Escrow Shares on Exhibit A as --------- --------- calculated by the parties executing this Agreement with the Escrow Agent. In . (d) The Stockholders shall have no event will right to receive, and the Escrow Agent be deemed shall not distribute to have assumed any liability or responsibility for the sufficiencyStockholders, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the fractional Escrow Agent in any manner sufficient to bring it to its attentionShares. In the event that the Subscription Proceeds are attached, garnished or levied upon under distribution of any court order, or if the delivery Stockholder's pro rata share of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow AgentShares would, but for this Section 5(d), result in such Stockholder receiving fractional shares of Premiere Common Stock, (i) the Escrow Agent may, shall instruct the Transfer Agent to issue a certificate in its sole discretion, obey and comply with all writs, orders, judgments such Stockholder's name for his or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision pro rata share of this Agreement Escrow Shares rounded down to the contrary. If nearest whole share, (ii) the Escrow Agent obeys and complies with any such writsshall instruct the Transfer Agent to issue an additional certificate representing, orderin the aggregate, judgment or decrees it will not be liable to any of all fractional share interests at the parties hereto or to any other person, firm or corporation by reason time of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, distribution and the Escrow Agent is authorized and directed shall thereupon deliver such certificate to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other personPremiere, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it (iii) Premiere shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving deliver to the Escrow Agent a notice an amount of termination executed by each cash representing, the aggregate market value (based on the closing sale price of them not less than ten (10) days prior to Premiere Common Stock on the proposed date day of termination. The resignation or the termination of the Escrow Agent will be effective Period or, if such day is not a business day, the business day immediate preceding such date, as reported in the Wall Street Journal) of such fractional share interests as of the time of such distribution, and (iv) the Escrow Agent will cease shall deliver to each applicable Stockholder cash or a check representing such Stockholder's fractional share interest. Premiere agrees to cause all necessary Form 1099 information reports to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser filed and the Company may agree upon. All indemnities granted to hereby indemnifies the Escrow Agent will survive against all costs resulting from the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein failure to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and file such delivery and interpleading will be an effective discharge to the Escrow Agentreports.

Appears in 1 contract

Samples: Merger Agreement (Premiere Technologies Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages reasonable fees and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance ---------------- Agent in good faith connection with its execution and performance of this Escrow Agreement as set forth on Exhibit B hereto shall be borne by Premiere and the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedingsStockholders --------- equally. The Escrow Agent will have no responsibility in respect of loss shall be entitled to such rights and shall perform such duties of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof Escrow Agent as it would exercise if the Subscription Proceeds belonged set forth herein, including but not limited to the following (collectively, the "Duties"): (a) The Escrow AgentAgent shall hold and safeguard the Escrow during the Escrow Period, shall treat such Escrow as an escrow fund in accordance with the terms of this Escrow Agreement and not as the property of Premiere, and shall hold and dispose of the Escrow only in accordance with the terms of this Escrow Agreement. (b) The Escrow Agent shall distribute to the Stockholders all material relating to a vote of holders of Premiere Common Stock that the Escrow Agent receives from the Premiere or any third party, and the Stockholders shall, in such Stockholder's sole discretion, vote such shares and execute such documents as may be necessary to permit such shares to be voted by the Stockholders in accordance with their respective beneficial interests. The Escrow Agent may act on shall have no right to vote the advice Escrow Shares, except to the extent so directed to do so by the beneficial owner of counsel but will not be responsible for acting or failing the respective shares. (c) If at any time following the date of execution of this Agreement and prior to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility expiration of the Escrow Agent will be Period all claims arising out of or related to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein matters set forth. The Escrow Agent will not be required to pass upon the sufficiency of any forth in Section 5.11(c) of the Subscription Proceeds or VTE Disclosure Memorandum shall have been resolved to ascertain whether or not the person or persons who Premiere's satisfaction and all claims for Losses in respect thereof shall have executedbeen distributed to Premiere in accordance with Section 3, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as then the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof distribute to each of the Purchaser or Stockholders the Company. The Purchaser and number of Escrow Shares (rounded up to the Company may terminate nearest whole number) equal to (i) the sum of (A) $3,000,000 multiplied by such Stockholder's pro rata interest in the Escrow Agent Shares, less (B) the Distributed Value with respect to claims for Losses asserted by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days Premiere prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted event giving rise to the Escrow Agent will survive the termination of rights under this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given Section 5(d) multiplied by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, such Stockholder's pro rata interest in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.the

Appears in 1 contract

Samples: Merger Agreement (Premiere Technologies Inc)

The Escrow Agent. In exercising (a) The Buyer and the rightsSeller hereby appoint the Escrow Agent to act as escrow agent and to hold the Escrowed Funds, and the Escrow Agent hereby accepts such appointment, upon the terms and conditions set forth herein. (b) The Buyer shall pay the Escrow Agent’s costs and fees for its ordinary services under this Agreement. The Escrow Agent shall be entitled to an administrative fee of $[ ] per year for the services to be rendered by it hereunder and to be reimbursed for all losses, liabilities or reasonable out-of-pocket expenses, including reasonable attorneys’ fees, incurred or made by it without gross negligence, bad faith or willful misconduct arising out of or in connection with its entering into this Agreement or carrying out its duties hereunder, including the costs and expenses of defending itself against any claim of liability with respect to this Agreement. Any such compensation and reimbursement to which the Escrow Agent is entitled shall be borne 50% by the Buyer and 50% by the Seller. (c) The duties and obligations prescribed responsibilities of the Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no further duties or confirmed responsibilities shall be implied. The Escrow Agent shall not in any way be bound or affected by a notice or modification or cancellation of this Agreement, unless written notice thereof is given to the Escrow Agent by the Buyer and the Seller. (d) In performing any duties under this Agreement, the Escrow Agent will act honestly and in good shall not be liable for damages, losses, or expenses, except for gross negligence, willful misconduct or bad faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and on the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason part of the Escrow Agent's compliance . The Escrow Agent shall not incur any such liability for (i) any act or failure to act made or omitted in good faith, or (ii) any action taken or omitted in reliance upon any instrument, including any written statement or affidavit provided for in this Agreement, that such agent shall in good faith believe to be genuine, nor will the Escrow Agent be liable or responsible for forgeries, fraud, impersonations, or determining the scope of any representative authority. The Escrow Agent is not responsible for determining and verifying the authority of any such person acting or purporting to act on behalf of any other party to this Agreement. (e) If any controversy arises between the parties to this Agreement, or with any other party, concerning the subject matter of this Agreement, its terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceedsor conditions, the Escrow Agent will not be obliged required to defend determine the controversy or to take any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agentregarding it. The Escrow Agent may act on hold the advice Escrowed Funds and may wait for settlement of counsel but will not any such controversy by final appropriate legal proceedings or other means as, in the Escrow Agent’s discretion, may be responsible for acting or failing to act on required, despite what may be set forth elsewhere in this Agreement. In such event, the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether liable for interest or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forthdamage. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this AgreementFurthermore, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination at its option, file an action of the issue between interpleader requiring the parties heretoto answer and litigate any claims and rights among themselves. The Escrow Agent may resign is authorized to deposit with the clerk of the court the entire Escrowed Funds. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liabilities imposed by the terms of this Agreement, except for obligations or liabilities arising by reason of the prior negligence, willful misconduct or bad faith on the part of the Escrow Agent. (f) The Escrow Agent agrees that the Buyer and the Seller may, by mutual agreement at any time, remove it as Escrow Agent by giving not less then ten (10) days' hereunder and substitute an individual or a bank or trust company for it, in which event the Escrow Agent, upon receipt of written notice thereof thereof, shall account for and deliver to each of the Purchaser or the Company. The Purchaser such substituted escrow agent all funds and the Company may terminate the Escrow Agent obligations held by giving it, less any amounts then due and unpaid to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective it for fees and expenses as herein provided, and the Escrow Agent will cease shall thereafter be discharged from all liability hereunder for events arising after such removal. (g) The Escrow Agent may at any time resign as such by delivering written notice of resignation to the other parties hereto. If the Buyer and the Seller jointly designate a successor escrow agent, then the Escrow Agent shall deliver the Escrowed Funds to such successor escrow agent, whereupon the Escrow Agent shall be bound by this Agreement on the date that is ten discharged of any liability or responsibility with respect thereto arising thereafter. If, within thirty (1030) days after the date of receipt of the termination such notice given hereunder or on such other date as the Escrow Agentof resignation, the Purchaser Buyer and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrarySeller have not jointly designated a successor escrow agent, the Escrow Agent may act upon any written instructions given by deposit the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, Escrowed Funds into a court of competent jurisdiction in the event State of any dispute arising between the Purchaser [ ], and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceedsupon such deposit, the Escrow Agent may shall be relieved of any liability or responsibility with respect thereto arising thereafter. Any corporation or association into which the Escrow Agent in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will individual capacity may be an effective discharge merged or converted or with which it may be consolidated, or any corporation or association resulting from any merger, conversion or consolidation to which the Escrow AgentAgent in its individual capacity shall be a party, or any corporation or association to which all or substantially all the corporate trust business of the Escrow Agent in its individual capacity may be sold or otherwise transferred, shall be the Escrow Agent hereunder without further action of the Buyer or the Seller hereunder.

Appears in 1 contract

Samples: Stock Purchase Agreement (Bruker Corp)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the (2) The Escrow Agent will act honestly may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (3) The Escrow Agent shall not be liable for any action taken by it in good faith and will exercise reasonably believed by it to be authorized or within the rights or powers conferred upon it by this Escrow Agreement, and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. (4) In the event that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow AgentAgent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its successorsopinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and assigns, from and against its sole obligation shall be to keep safely all loss, costs, charges, suits, demands, claims, damages and expenses which property held in escrow until it shall be directed otherwise in writing by all of the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for other parties hereto or by reason a final order or on account judgment of a court of competent jurisdiction. (5) The Escrow Agent may resign and be discharged from its acting pursuant duties or obligations hereunder by giving notice in writing of such resignation specifying a date upon which such resignation shall take effect, which date shall not be less than sixty (60) days prior to this the date such notice is given and provided that such resignation shall not take effect until a successor Escrow Agent shall have been appointed jointly by Hubbxxx xxx the Shareholder Representative. (6) This Escrow Agreement or anything in any manner relating thereto or by reason expressly sets forth all the duties of the Escrow Agent's compliance in good faith Agent with the terms hereofrespect to any and all matters pertinent hereto. In case proceedings should hereafter No implied duties or obligations shall be taken in any court respecting the Subscription Proceeds, the read into this Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 Agreement against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will shall not be responsible for acting or failing bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement and shall not be deemed to act on have knowledge of nor responsibility under the advice terms of counselthe Merger Agreement. The Escrow Agent will not shall be bound in under no duty to inquire into or investigate the validity, accuracy or content of any way by any contract between such document. (7) Hubbxxx xxx the parties hereto whether or not it has notice thereof or Shareholder Representative (on behalf of its terms the Shareholders) hereby agree, jointly and conditions severally, to indemnify and the only duty, liability and responsibility of hold harmless the Escrow Agent will be to hold the Subscription Proceeds as herein directed against any and to pay all costs, losses, claims, damages, liabilities, expenses, including reasonable costs of investigation, court costs, and deliver the same to such persons attorneys' fees and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executeddisbursements, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that which may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served imposed upon the Escrow Agent in connection with its acceptance of appointment as Escrow Agent hereunder, including any manner sufficient to bring it to its attention. In litigation arising from this Agreement or involving the event that subject matter hereof, except in the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery case of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent's own willful default or gross negligence; 50% of any such amount shall be payable by Hubbxxx xxx 50% shall be payable by the Shareholder Representative on behalf of the Shareholders. Anything in this agreement to the contrary notwithstanding, in no event shall the Escrow Agent maybe liable for special, in its sole discretionindirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If even if the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any has been advised of the parties hereto or to any other person, firm or corporation by reason likelihood of such compliance, notwithstanding that such writs, orders, judgments loss or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized damage and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any regardless of the parties hereto or by any other person, firm, association or corporation. It willform of action; provided, however, obey that this sentence 8 8 shall not apply in the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of gross negligence or bad faith on the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination part of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event performance of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the duties as Escrow Agent.

Appears in 1 contract

Samples: Escrow Agreement (Hubbell Inc)

The Escrow Agent. (a) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In exercising no event shall the rightsEscrow Agent be liable (i) for acting in accordance with or relying upon (and shall be fully protected in relying upon) any instruction, duties notice, demand, certificate or document from the Borrower, any entity acting on behalf of the Borrower or any other person or entity which it reasonably believes to be genuine, (ii) for any indirect, consequential, punitive or special damages, even if advised of the possibility thereof, (iii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by it in good faith, or (iv) for an amount in excess of the value of the Escrow Amount. (b) As security for the due and punctual performance of any and all of the Borrower’s obligations prescribed to the Escrow Agent hereunder, now or confirmed hereafter arising, the Borrower hereby pledges, assigns and grants to the Escrow Agent a continuing security interest in, and a lien on and right of setoff against, the Escrow Property and all Distributions thereon, investments thereof or additions thereto (whether such additions are the result of deposits by this AgreementDepositor or the investment of Escrow Property or otherwise). If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will hereunder are not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreementpromptly paid when due, the Escrow Agent may continue to hold reimburse itself therefor from the Subscription Proceeds until the lawful determination Escrow Property, and may sell, convey or otherwise dispose of any Escrow Property for such purpose. The security interest and setoff rights of the issue between Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against the Borrower and all third parties hereto. in accordance with the terms of this Escrow Agreement. (c) The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each consult with legal counsel at the expense of the Purchaser or the Company. The Purchaser Borrower as to any matter relating to this Escrow Agreement, and the Company may terminate the Escrow Agent by giving to the shall not incur any liability in acting in good faith in accordance with any advice from such counsel. (d) The Escrow Agent a notice shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of termination executed by each of them not less than ten (10) days prior to any occurrence beyond the proposed date of termination. The resignation or termination control of the Escrow Agent will be effective and (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war or terrorism, or the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt unavailability of the termination notice given hereunder Federal Reserve Bank wire or on such telex or other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement wire or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the Escrow Agentcommunication facility).

Appears in 1 contract

Samples: Credit Agreement (California Resources Corp)

The Escrow Agent. 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. . 4.2 The Purchaser and the Company Vendor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. . 4.3 In case proceedings should hereafter be taken in any court respecting the Subscription ProceedsTransfer Documents or the Purchase Shares, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. . 4.4 The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds Transfer Documents or the Purchase Shares except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds Transfer Documents and the Purchase Shares belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. . 4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds Transfer Documents and the Purchase Shares as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. .. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds Transfer Documents or Purchase Shares or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to to, so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. . 4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. . 4.7 In the event that the Subscription Proceeds Transfer Documents or Purchase Shares are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment judgment. or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. . 4.8 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. . 4.9 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds Transfer Documents or Purchase Shares until the lawful determination of the issue between the parties hereto. . 4.10 If protest is made, to any action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may continue to hold the Transfer Documents or Purchase Shares until the right to the documents is legally determined by a court of competent jurisdiction or otherwise. 4.11 If written notice of protest is made by either the Purchaser or the Vendor to the Escrow Agent to any action contemplated by the Escrow Agent under this Agreement, and such notice sets out reasons for such protest, the Escrow Agent will be entitled to continue to hold the Transfer Documents or the Purchase Shares until the right to the documents is legally determined by a court of competent jurisdiction or otherwise. 4.12 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the CompanyVendor. The Purchaser and the Company Vendor may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days days' prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company Vendor may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. . 4.13 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Company Vendor and the Purchaser jointly. . 4.14 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company Vendor or between any other persons or between any of them with respect to the Subscription Asset Purchase Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription ProceedsShares, the Escrow Agent may in its sole discretion deliver and interplead the Subscription Proceeds Transfer Documents and the Purchase Shares into court and such delivery and interpleading will be an effective discharge to the Escrow Agent. 4.15 The Escrow Agent is under no responsibility to take any action whatsoever unless and until the fees and disbursements of the Escrow Agent due or reasonably expected to accrue are paid in full.

Appears in 1 contract

Samples: Escrow Agreement (Bingo Com Inc)

The Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention. In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10a) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrow Agent. Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Shares as directed by a writing jointly signed by the Stockholder Representative and the Buyer. The reasonable fees and expenses of the Escrow Agent in connection with its execution and performance of this Agreement as set forth on Annex II hereto shall be borne by the Buyer. The Escrow Agent shall not be liable for any act or omission to act under this Agreement, including any and all claims made against the Escrow Agent as a result of its holding the Escrow Shares in its own name, except for its own gross negligence or willful misconduct. The Escrow Agent shall not be liable for, and the Buyer and the Employee Stockholders shall jointly and severally indemnify the Escrow Agent against any losses or claims (including reasonable court costs, attorneys' fees and costs and other out-of- pocket expenses) arising out of any action taken or omitted in good faith hereunder. The Escrow Agent may consult counsel satisfactory to it, including house counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.. The Escrow Agent may decline to act and shall not be liable for failure to act if in doubt as to its duties under this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages. The Escrow Agent may act upon any written instructions given instrument or signature believed by the Company it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Agreement and applicable law and the Purchaser jointly. Notwithstanding anything Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including without limitation, the Merger Agreement. (b) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the contrary contained hereinparties hereto, in at the event of any dispute arising between addresses set forth herein or at such other address as the Purchaser and the Company or between any other persons or between any of them with respect parties shall provide, at least thirty (30) days prior to the Subscription Agreementdate specified for such resignation to take effect. In such event the Buyer, this Agreement or any matters arising theretowith the approval of the Stockholder Representative which will not be unreasonably withheld, or with respect to shall appoint a successor escrow agent within that thirty-day period; if the Subscription ProceedsBuyer does not designate a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent or may apply to a court of competent jurisdiction for the appointment of such successor. Upon the effective date of such resignation, the Escrow Shares together with all cash and other property then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in its sole discretion deliver writing by the Buyer and the Stockholder Representative. (c) In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the other parties hereto, the Escrow Agent shall have the right to interplead the Subscription Proceeds parties in any court of competent jurisdiction and request that such court determine the respective rights of the parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to the other parties as a consequence of any such claims or demands. (d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as fiduciary or otherwise in any jurisdiction other than the Commonwealth of Massachusetts. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into court or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto. (e) The Buyer and the Stockholder Representative, jointly and severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent on any such delivery payment or other activities under this Agreement. The Buyer and interpleading will be an effective discharge Stockholder Representative undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other government charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. The Buyer and Stockholder Representative, jointly and severally, agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other government charges, including, without limitation, the withholding or deduction or the failure to withhold or deduct same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees and expenses, interest and penalties. (f) The Escrow Agent shall be entitled to reimbursement on demand for all expenses incurred in connection with the administration of the escrow created hereby which are in excess of its compensation for normal services hereunder, including, without limitation, payment of all legal fees and expenses incurred by the Escrow Agent in connection with the resolution of any Claim by any party hereunder.

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Samples: Employee Stockholder Escrow Agreement (CMG Information Services Inc)