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Common use of The Escrow Agent Clause in Contracts

The Escrow Agent. 2.01. It is understood and agreed that the duties of the Escrow Agent, are entirely ministerial, being limited to receiving monies and property hereunder, and holding and disbursing such monies and property in accordance with this Agreement. The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty of the Escrow Agent shall be to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 The Escrow Agent shall not be required to take or be bound by notice of any default of any person or to take any action with respect to such default involving any expense or liability, unless notice in writing is given to an officer of the Escrow Agent of such default by the undersigned or any of them, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on any notice, request, waiver, consent, receipt, or other paper or document believed by the Escrow Agent to be genuine and to have been signed by the proper party or parties. 2.06 The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own gross negligence and willful misconduct. 2.07 The Escrow Agent shall not be answerable for the default or misconduct of any agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable care. 2.08 The Escrow Agent may consult with legal counsel in the event of any dispute or question as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of such counsel. 2.09 In the event of any disagreement between the undersigned or any of them, the person or persons named in the foregoing instructions, and/or any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected hereby, the Escrow Agent shall be entitled at its option to refuse to comply with any such claim, or demand so long as such disagreement shall continue and, in so refusing, the Escrow Agent shall not be or become liable to the undersigned or any of them or to any person named in the foregoing instructions for the failure or refusal to comply with such conflicting or adverse demands, and the Escrow Agent shall be entitled to continue to so refrain and refuse to so act until: (a) the rights of adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein or affected hereby; and/or (b) all differences shall have been adjusted by agreement and the Escrow Agent shall have been notified thereof in writing signed by all of the persons interested.

Appears in 1 contract

Samples: Proceeds Escrow Agreement (Renewable Energy Acquisition Corp.)

The Escrow Agent. 2.01. It is understood (a) The duties, responsibilities and agreed that the duties obligations of Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied against the Escrow Agent. The Escrow Agent shall not be subject to, are entirely ministerialnor required to comply with, being limited any other agreement to receiving monies and property hereunderwhich the Company or Dalmore is a party, and holding and disbursing such monies and property 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. The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty of the Escrow Agent shall be to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between ) from the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced by Dalmore or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 an entity acting on its behalf. The Escrow Agent shall not be required to take expend or be bound by notice risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any default of its duties hereunder. (b) If at any person time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Property (including but not limited to take any action with respect orders of attachment or garnishment or other forms of levies or injunctions or stays relating to such default involving any expense or liability, unless notice in writing is given to an officer the transfer of the Escrow Property), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such default by the undersigned judicial or any administrative order, judgment, decree, writ or other form of themjudicial or administrative process, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on to any noticeof the parties hereto or to any other person or entity even though such order, requestjudgment, waiverdecree, consent, receipt, writ or other paper process may be subsequently modified or document believed by the Escrow Agent to be genuine and vacated or otherwise determined to have been signed by the proper party without legal force or partieseffect. 2.06 (c) The Escrow Agent shall not be liable for any error of judgment action taken or omitted or for any act done loss or step taken injury resulting from its actions or omitted by it its performance or lack of performance of its duties hereunder in good faiththe 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 and Dalmore or any entity acting on behalf of the Company or Dalmore, (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, or (iv) 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. (d) If any mistake of fact fees, expenses or lawcosts incurred by, or for anything which it any obligations owed to, the Escrow Agent hereunder are not promptly paid within thirty (30) days after an invoice has been rendered, the Escrow Agent may do or refrain reimburse itself therefor from doing in connection herewiththe Escrow Property, except its own gross negligence and willful misconductnot to exceed one thousand dollars ($1,000) per year. 2.07 The Escrow Agent shall not be answerable for the default or misconduct of any agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable care. 2.08 (e) The Escrow Agent may consult with legal counsel in of its own choosing, at the event expense of any dispute or question the Company and Dalmore, as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunderany matter relating to this Agreement, and the Escrow Agent shall not incur no 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 fully protected required to invest any funds held hereunder. 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 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 and Dalmore 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 the opinion and instructions of any such counselcommunication. 2.09 (k) In the event of any disagreement between ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the undersigned or any of themEscrow 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 an authorized representative of the Company, which eliminates such ambiguity or uncertainty. (l) In the event of any dispute between or conflicting claims among the Company and Dalmore and any other person or persons named in the foregoing instructions, and/or entity with respect to any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyEscrow Property, the Escrow Agent shall be entitled at entitled, in its option sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such claim, or demand Escrow Property so long as such disagreement dispute or conflict shall continue andcontinue, in so refusing, and the Escrow Agent shall not be or become liable in any way to the undersigned or any of them or to any person named in the foregoing instructions Company and Dalmore for the failure or refusal to comply with such conflicting claims, demands or adverse demands, and the instructions. The Escrow Agent shall be entitled to continue to so refrain and refuse to so act until: , in its sole discretion, either (ai) the rights of such conflicting or adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein claims or affected hereby; and/or (b) all differences demands shall have been adjusted 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 and between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have been notified thereof in writing signed 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 all 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 persons interestedrights 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 proceeding shall be paid by, and shall be deemed a joint and several obligation of, the Company and Dalmore. (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) 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 Company and Dalmore 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 Company and Dalmore 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 only be responsible for income reporting with respect to income earned on the Escrow Property, if any, and will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent. (o) The Escrow Agent shall provide to the Company and Dalmore monthly statements identifying expenses, fees, 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 and Dalmore unless the Escrow Agent is notified in writing, by the Company and Dalmore, to the contrary within thirty (30) business days of the date of such statement.

Appears in 1 contract

Samples: Escrow Agreement (Seismic Capital Co)

The Escrow Agent. 2.01. It is understood and agreed that the duties of the Escrow Agent, are entirely ministerial, being limited to receiving monies and property hereunder, and holding and disbursing such monies and property in accordance with this Agreement. The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid (a) Notwithstanding anything herein to the Escrow Agentcontrary, the sole duty of the Escrow Agent shall be to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, deliver all or any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 The Escrow Agent shall not be required to take or be bound by notice of any default of any person or to take any action with respect to such default involving any expense or liability, unless notice in writing is given to an officer part of the Escrow Agent of such default Shares as directed by the undersigned or any of them, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on any notice, request, waiver, consent, receipt, or other paper or document believed by the Escrow Agent to be genuine and to have been writing jointly signed by the proper party or parties. 2.06 Shareholders' Agent and Parent as soon as practicable upon receipt of such notice. The Escrow Agent shall not be liable for any error act or failure to act under this Escrow Agreement, including any and all claims made against the Escrow Agent as a result of judgment its holding the Escrow Shares or for any act done or step taken or omitted by it Escrow Cash Dividends in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewithits own name, except for its own gross negligence and negligence, bad faith or willful misconduct. 2.07 The Escrow Agent shall not be answerable for the default or misconduct of any agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable care. 2.08 The Escrow Agent may consult with legal counsel in the event of any dispute or question as . Subject to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of such counsel. 2.09 In the event of any disagreement between the undersigned or any of them, the person or persons named in the foregoing instructions, and/or any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected hereby, the Escrow Agent shall be entitled at its option to refuse to comply with any such claim, or demand so long as such disagreement shall continue and, in so refusingforegoing, the Escrow Agent shall not be liable for, and Parent and the Shareholders' Agent shall, jointly and severally, indemnify and hold harmless the Escrow Agent and its directors, employees, officers, agents, successors and assigns against any losses or become 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 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 undersigned express duties set forth in this Escrow Agreement, each of which duties are ministerial in nature, and applicable law. The 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 Amendment Agreement. The parties hereto agree that the use of them or defined terms incorporated by reference to any person named in the foregoing instructions Merger Agreement and the Amendment Agreement is solely for the failure or refusal to comply with such conflicting or adverse demandsconvenience of the other parties, and the 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 consequential damages or losses (including lost profits) whatsoever, even if the Escrow Agent has been informed of the likelihood of such damages or losses. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent or the termination of this Escrow Agreement. (b) Parent agrees to (i) pay the Escrow Agent upon execution of this Escrow Agreement and annually thereafter reasonable compensation for the services to be rendered hereunder, which unless otherwise agreed in writing shall be as set forth in ANNEX D attached hereto, and (ii) pay or reimburse the Escrow Agent upon request for all expenses, disbursements and advances, including reasonable attorneys' fees and expenses, incurred or made by it in connection with the preparation, execution, performance, delivery, modification and termination of this Escrow Agreement. (c) 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. The Escrow Agent shall have the right to withhold an amount equal to any amount due and owing to the Escrow Agent, plus any costs and expenses the Escrow Agent shall reasonably believe may be incurred by the Escrow Agent in connection with the termination of this Escrow Agreement. 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 Cash Dividends 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. (d) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to continue refrain from taking any action and its sole obligation shall be to so refrain and refuse to so act until: (a) the rights of adverse claimants have been finally adjudicated keep safely all property held in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein or affected hereby; and/or (b) all differences escrow until it shall have been adjusted by agreement and the Escrow Agent shall have been notified thereof be directed otherwise in writing signed by all of the persons interestedother parties hereto or by a final order or judgment of a court of competent jurisdiction. The Escrow Agent may consult counsel satisfactory to it, including in-house counsel, and will be protected in respect of any action taken or omitted in reliance thereon. (e) 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 New York 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 (General Atlantic Partners LLC)

The Escrow Agent. 2.01. It is understood (a) The duties, responsibilities and agreed that the duties obligations of Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied against the Escrow Agent, are entirely ministerial, being limited to receiving monies and property hereunder, and holding and disbursing such monies and property in accordance with this Agreement. The Escrow Agent shall have no duty or responsibility not be subject to, nor required to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reasoncomply with, any check deposited into other agreement to which the Escrow Account shall be returned unpaid to the Escrow AgentParties are a party, the sole duty of the Escrow Agent shall be to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which even though reference thereto may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuinenessmade herein, or validity of to comply with any instrument deposited direction or instruction (other than those contained herein or delivered in accordance with it, this Escrow Agreement) from the Parties or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 an entity acting on their behalf. The Escrow Agent shall not be required to take expend or be bound by notice risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any default of its duties hereunder. (b) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow 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 Property), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate, provided that the Escrow Agent acts in good faith and gives reasonable notice thereof to the Parties; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified 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 fraud, gross negligence or willful misconduct on its part provided that such actions or ommissions are in good faith and consistent with the terms of this Agreement. In the absence of fraud, gross negligence or willful misconduct, in no event shall the Escrow Agent be liable under this Agreement (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from Parent and Buyer or any entity acting on behalf of the Parties, (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 in the administration of the Escrow Agent’s duties hereunder, (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 in the investment or reinvestment of the Escrow Property, or any loss of interest or income incident to any such delays, or (iv) 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. (d) Upon five (5) business day’s written notice to Parent and Buyer, the Escrow Agent may consult with legal counsel of its own choosing, at the expense of Parent and Buyer, as to any matter relating to this Escrow Agreement and the Escrow Agent shall not incur any liability for taking any action, that is consistent with its duties, obligations or responsibities hereunder, in good faith in accordance with 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 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 take 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 such default involving any expense securities or liabilityother 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 directed in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest. (i) At any time, unless notice in writing is given to an officer of the Escrow Agent may request an instruction in writing in English from Parent and Buyer and may, at its own option, include in such request the course of such default by action it proposes to take and the undersigned or date on which it proposes to act, regarding any of them, matter arising in connection with its duties and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 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 five (5) business days after Parent and Buyer 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. (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 both Parent and Buyer by means of telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent fraud, willful misconduct or gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Parties or is not in the form Parent and Buyer sent or intended to send (whether due to fraud, distortion or otherwise). Parent and Buyer shall indemnify the Escrow Agent against any loss, liability, claim or customary expense (including 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, request, waiver, consent, receipt, instruction or other paper or document believed communication received by the Escrow Agent hereunder, the Escrow Agent may, after providing notice to be genuine Parent and Buyer, in its reasonable discretion, refrain from taking any action other than to have been retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the proper party Parent and Buyer, which eliminates such ambiguity or partiesuncertainty. 2.06 The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own gross negligence and willful misconduct. 2.07 The Escrow Agent shall not be answerable for the default or misconduct of any agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable care. 2.08 The Escrow Agent may consult with legal counsel in (l) In the event of any dispute between or question as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunder, conflicting claims among Parent and the Escrow Agent shall incur no liability Buyer and shall be fully protected in acting in accordance with the opinion and instructions of such counsel. 2.09 In the event of any disagreement between the undersigned or any of them, the other person or persons named in the foregoing instructions, and/or entity with respect to any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyEscrow Property, the Escrow Agent shall be entitled at entitled, in its option reasonable discretion, to refuse to comply with any and all claims, demands or instructions with respect to such claim, or demand Escrow Property so long as such disagreement dispute or conflict shall continue andcontinue, in so refusing, and the Escrow Agent shall not be or become liable in any way to the undersigned Parent or any of them or to any person named in the foregoing instructions Buyer for the failure or refusal to comply with such conflicting claims, demands or adverse demands, and the instructions. The Escrow Agent shall be entitled to continue to so refrain and refuse to so act until: , in its reasonable discretion, either (ai) the rights of such conflicting or adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein claims or affected hereby; and/or (b) all differences demands shall have been adjusted 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 and between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have been notified thereof in writing signed 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 all 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 persons interestedrights 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 reasonable discretion, necessary. The customary costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed a joint and several obligation of, the Parent and Buyer. (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) 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. Buyer 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. Parent and Buyer will each provide the Escrow Agent with a properly completed Internal Revenue Service (“IRS”) form W-9 for tax identification number certification, or IRS form W-8 for foreign person certification. If such tax reporting documentation is not provided to the Escrow Agent, the Escrow Agent may be required to withhold a portion of any interest or other income earned on the investment of the Escrow Property. This paragraph shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent. (o) If requested by Parent or Buyer, the Escrow Agent shall provide to such party monthly statements identifying the holdings of Escrow Property.

Appears in 1 contract

Samples: Equity Interest Purchase Agreement (CAESARS ENTERTAINMENT Corp)

The Escrow Agent. 2.01. It is understood and agreed that the duties of (a) Radiance shall pay the Escrow Agent, are entirely ministerial, being limited to receiving monies and property hereunder, and holding and disbursing such monies and property 's fee for its ordinary services under this Agreement in accordance with the fee schedule set forth on Schedule B attached hereto. (b) In performing any duties under this Agreement. The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty of the Escrow Agent shall be to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 The Escrow Agent shall not be required to take or be bound by notice of any default of any person or to take any action with respect to such default involving any expense or liability, unless notice in writing is given to an officer of the Escrow Agent of such default by the undersigned or any of them, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on any noticedamages, request, waiver, consent, receiptlosses, or other paper expenses, except for gross negligence or document believed by willful misconduct on the part of the Escrow Agent to be genuine and to have been signed by the proper party or parties. 2.06 Agent. The Escrow Agent shall not be liable incur any such liability for any error of judgment or for (i) any act done or step taken failure to act made or omitted by it in good faith, (ii) any action taken or omitted in reliance upon any instrument, including any written statement or affidavit provided for any mistake of fact or lawin this Agreement that such agent shall in good faith believe to be genuine, or for anything which it may do (iii) forgeries, fraud, impersonations, or refrain from doing in connection herewith, except its own gross negligence and willful misconduct. 2.07 The Escrow Agent shall not be answerable for determining the default or misconduct scope of any agentrepresentative authority. In addition, attorney, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable care. 2.08 The the Escrow Agent may consult with legal counsel in the event of any dispute or question as to the consideration of the foregoing instructions or the Escrow Agent’s connection with its duties hereunder, and the Escrow Agent shall incur no liability under this Agreement and shall be fully protected in acting any act taken, suffered, or permitted by it in good faith in accordance with the opinion advice of counsel. The Escrow Agent is not responsible for determining and instructions verifying the authority of any such counselperson acting or purporting to act on behalf of any party to this Agreement. 2.09 In (c) If any controversy arises between the event parties to this Agreement, or with any other party, concerning the subject matter of this Agreement, its terms or conditions, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold the Escrow Fund and may wait for settlement of any disagreement between such controversy by arbitration pursuant to Section 8 hereof, by final appropriate legal proceedings or other means as, in the undersigned or any of themEscrow Agent's discretion, may be required, despite what may be set forth elsewhere in this Agreement. In such event, the person Escrow Agent will not be liable for interest or persons named in damage. Furthermore, the foregoing instructionsEscrow Agent may at its option, and/or file an action of interpleader requiring the parties to answer and litigate any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyand rights among themselves. Upon initiating such action, the Escrow Agent shall be entitled 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 Holders, to the extent of the Escrow Fund only, and Radiance shall indemnify and hold harmless the Escrow Agent and shall share equally 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, but not including 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 at its option any time upon giving at least 30 days' written notice to refuse 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 comply with any mutually agree on a successor escrow agent within 30 days after receiving such claim, or demand so long as notice. If the parties fail to agree upon a successor escrow agent within such disagreement shall continue and, in so refusingtime, the Escrow Agent shall not 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 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 become liable liabilities arising by reason of the prior gross 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 whom the Escrow Agent may transfer a substantial amount of its escrow business, shall be the successor to the undersigned Escrow Agent without the execution or filing of any paper or any further act on the part of them any of the parties to this Agreement, anything herein to the contrary notwithstanding. (g) The Escrow Agent shall not sell, encumber or otherwise dispose of the Escrow Shares held as a part of the Escrow Fund, except that the Escrow Agent shall, upon the written direction of the Holders' Representative and Radiance, effect a sale or other disposition of the Escrow Shares in a transaction involving (i) the receipt by the stockholders of Radiance of cash in any merger or reorganization in exchange or partly in exchange for shares of Common Stock of Radiance; (ii) the sale of all or substantially all of the assets of Radiance for cash and the distribution to stockholders of Radiance of the proceeds of such sale as a liquidating distribution; or (iii) a cash tender offer for all or a part of the shares of Common Stock of Radiance. In the event of any person named in receipt of cash by the foregoing instructions for the failure Escrow Agent as a result of any of such transactions or refusal to comply with such conflicting or adverse demandsas a result of a Milestone Payment, and the Escrow Agent shall be entitled invest and reinvest all cash funds from time to continue to so refrain and refuse to so act until: (a) time comprising the rights Escrow Fund, together with the earnings thereon, in money market savings accounts or certificates of adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein or affected hereby; and/or (b) all differences shall have been adjusted by agreement and deposit at the Escrow Agent shall have been notified thereof which are insured by the Federal Deposit Insurance Corporation up to applicable limits (a "Money Market Fund"). The Escrow Agent is authorized to liquidate in writing signed by all accordance with its customary procedures any portion of the persons interestedEscrow Fund consisting of investments to provide for payments required to be made under this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Radiance Medical Systems Inc /De/)

The Escrow Agent. 2.01. It is understood (1) The duties, responsibilities and agreed that the duties obligations of Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied against the Escrow Agent, are entirely ministerial, being limited to receiving monies and property hereunder, and holding and disbursing such monies and property in accordance with this Agreement. The Escrow Agent shall have no duty or responsibility not be subject to, nor required to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reasoncomply with, any check deposited into the Escrow Account shall be returned unpaid other agreement to the Escrow Agent, the sole duty of the Escrow Agent shall be to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between which the Company and the Underwriter or the Underwriter and the Selling Groupis a party, which even though reference thereto may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuinenessmade herein, or validity of to comply with any instrument deposited direction or instruction (other than those contained herein or delivered in accordance with it, this Escrow Agreement) from the Company or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 an entity acting on its behalf. The Escrow Agent shall not be required to take expend or be bound by notice risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any default of its duties hereunder. (2) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow 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 Property), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. (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 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. (b) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and 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. (c) As security for the due and punctual performance of any and all of the Company's obligations to the Escrow Agent hereunder, now or hereafter arising, the Company hereby pledges, assigns and grants to the Escrow Agent a continuing security interest in, and a lien on, the Escrow Property and all Earnings 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 all third parties in accordance with the terms of this Escrow Agreement. (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 Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with 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, war, or 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 take make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. (4) 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 such default involving any expense securities or liability, unless notice other property deposited hereunder. (5) 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 writing is given to an officer of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest. (6) 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 such default by action it proposes to take and the undersigned or date on which it proposes to act, regarding any of them, matter arising in connection with its duties and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 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 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. (7) 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 expenses) it may incur with its acting in accordance with any such communication. (a) In the event of any ambiguity or uncertainty hereunder or in any notice, request, waiver, consent, receipt, instruction or other paper or document believed communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to be genuine and to have been retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the proper party Company, which eliminates such ambiguity or partiesuncertainty. 2.06 The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own gross negligence and willful misconduct. 2.07 The Escrow Agent shall not be answerable for the default or misconduct of any agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable care. 2.08 The Escrow Agent may consult with legal counsel in (b) In the event of any dispute between or question as to conflicting claims among the consideration of the foregoing instructions or the Escrow Agent’s duties hereunder, Company and the Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of such counsel. 2.09 In the event of any disagreement between the undersigned or any of them, the other person or persons named in the foregoing instructions, and/or entity with respect to any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyEscrow Property, the Escrow Agent shall be entitled at entitled, in its option sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such claim, or demand Escrow Property so long as such disagreement dispute or conflict shall continue andcontinue, in so refusing, and the Escrow Agent shall not be or become liable in any way to the undersigned Company or any of them such other person or to any person named in the foregoing instructions entity for the failure or refusal to comply with such conflicting claims, demands or adverse demands, and the instructions. The Escrow Agent shall be entitled to continue to so refrain and refuse to so act until: , in its sole discretion, either (ai) the rights of such conflicting or adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein claims or affected hereby; and/or (b) all differences demands shall have been adjusted 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 and between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have been notified thereof in writing signed 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 all 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 persons interestedrights 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 proceeding shall be paid by the Company. (c) 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. (9) 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 Company 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 Company will provide the Escrow Agent with an appropriate W-9 form for tax identification number certification. This paragraph shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent. (10) 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 the Company unless the Escrow Agent is notified in writing, by the Company, to the contrary within thirty (30) business days of the date of the Company's receipt of such statement.

Appears in 1 contract

Samples: Escrow Agreement (Motient Corp)

The Escrow Agent. 2.01. It is understood (a) The duties, responsibilities and agreed that the duties obligations of Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied against the Escrow Agent. The Escrow Agent shall not be subject to, are entirely ministerialnor required to comply with, being limited any other agreement to receiving monies and property hereunderwhich the Company or the Dealer Manager is a party, and holding and disbursing such monies and property 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. The Escrow Agent shall have no duty or responsibility to enforce ) from the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow AgentCompany, the sole duty of the Escrow Agent shall be to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter Dealer Manager or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 an entity acting on its behalf. The Escrow Agent shall not be required to take expend or be bound by notice risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any default of its duties hereunder. (b) If at any person time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Property (including but not limited to take any action with respect orders of attachment or garnishment or other forms of levies or injunctions or stays relating to such default involving any expense or liability, unless notice in writing is given to an officer the transfer of the Escrow Property), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such default by the undersigned judicial or any administrative order, judgment, decree, writ or other form of themjudicial or administrative process, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on to any noticeof the parties hereto or to any other person or entity even though such order, requestjudgment, waiverdecree, consent, receipt, writ or other paper process may be subsequently modified or document believed by the Escrow Agent to be genuine and vacated or otherwise determined to have been signed by the proper party without legal force or partieseffect. 2.06 (c) The Escrow Agent shall not be liable for any error of judgment action taken or omitted or for any act done loss or step taken injury resulting from its actions or omitted 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, the Dealer Manager, or any entity acting on behalf of the Company, (ii) for any indirect, consequential, punitive or special damages, multiple damages under M.G.L. c. 93A or any other authority, damages for lost profits, damages for emotional distress, or attorney's fees and costs, all 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 good faithaccordance 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 for any mistake loss of fact interest or lawincome incident to any such delays, or (v) for anything which it may do 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. The provisions of this subsection shall survive the termination of this Agreement or refrain from doing in connection herewith, except its own gross negligence and willful misconductthe earlier resignation or removal of the Escrow Agent. 2.07 (d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not paid within fifteen (15) calendar days of when they are due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent shall not be answerable for the default or misconduct may in its sole discretion withhold from any distribution of any agentinterest earned in respect of the Escrow Property an amount it believes would, attorneyupon sale or liquidation, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable careproduce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder. 2.08 (e) The Escrow Agent may consult with legal counsel in of its own choosing, at the event expense of any dispute or question the Company as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunderany matter relating to this Agreement, and the Escrow Agent shall not incur no any liability in acting in good faith in accordance with any advice from such counsel. Reliance on such advice of counsel shall not effect or be deemed to be a waiver of the Escrow Agent's attorney-client privilege or any other applicable privilege or protection. (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, the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility, or any computer or other technological malfunction). (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 fully protected required to invest any funds held hereunder except as directed in this Agreement. (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 its own gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or the Dealer Manager or is not in the form the Company or the Dealer Manager 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 expenses) it may incur with its acting in accordance with the opinion and instructions of any such counselcommunication. 2.09 (k) In the event of any disagreement between ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the undersigned or any of themEscrow 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 which eliminates such ambiguity or uncertainty. (1) In the event of any dispute between or conflicting claims among the Company and any other person or persons named in the foregoing instructions, and/or entity with respect to any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyEscrow Property, the Escrow Agent shall be entitled at entitled, in its option sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such claim, or demand Escrow Property for so long as such disagreement dispute or conflict shall continue andcontinue, in so refusing, and the Escrow Agent shall not be or become liable in any way to the undersigned Company or any of them or to any other person named in the foregoing instructions for the failure or refusal to comply with such conflicting claims, demands or adverse demands, and the instructions. The Escrow Agent shall be entitled to continue to so refrain and refuse to so act until: , to its sole satisfaction, either (ai) the rights of such conflicting or adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein claims or affected hereby; and/or (b) all differences demands shall have been adjusted 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 and between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have been notified thereof 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 in writing signed by all its sole discretion, to the effect that said order, judgment or decree represents a final adjudication of the persons interestedrights 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 may 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 proceeding shall be paid by, and shall be deemed an obligation of, the Company. (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) 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 Company 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 Company or the Dealer Manager will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent. (o) The Escrow Agent shall provide to the Company and the Dealer Manager 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 Company and the Dealer Manager unless the Escrow Agent is notified in writing, by the Company or the Dealer Manager, to the contrary within thirty (30) business days of the date of such statement.

Appears in 1 contract

Samples: Subscription Escrow Agreement (American Realty Capital Trust, Inc.)

The Escrow Agent. 2.01To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and 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 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. It is understood and agreed that Uninvested funds held hereunder shall not earn or accrue interest. (b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement. (c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, are entirely ministerialthe Buyer and the Seller shall, being limited to receiving monies severally and property hereundernot jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and holding expenses, including reasonable attorneys' fees and disbursing such monies disbursements, arising out of and property in accordance connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the 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 Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation 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. 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 advice 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 duty or responsibility to enforce for the collection or demand payment contents of any funds deposited into writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty of the Escrow Agent shall be to return the check to the Companycontents thereof. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 The Escrow Agent shall not be required to take or be bound by notice of any default of any person or to take any action with respect to such default involving any expense or liability, unless notice in writing is given to an officer of the Escrow Agent of such default by the undersigned or any of them, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on any notice, request, waiver, consent, receipt, or other paper or document believed by the Escrow Agent to be genuine and to have been signed by the proper party or parties. 2.06 The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own gross negligence and willful misconduct. 2.07 The Escrow Agent shall not be answerable for the default or misconduct of any agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable care. 2.08 The Escrow Agent may consult with legal counsel in the event of any dispute or question as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of such counsel. 2.09 (k) In the event of any disagreement between the undersigned or any of them, Buyer and the person or persons named in the foregoing instructions, and/or any other person, Seller resulting in adverse claims and/or or demands being made in connection with or for any papersthe Escrowed Property and Interest, moneyif any, or property involved herein or affected herebyin 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 at its option to refuse to comply with any such claimretain the Escrowed Property and Interest, or demand so long as such disagreement shall continue andif any, in so refusing, until the Escrow Agent shall not be have received (i) a Final Determination (as defined in Section 3(a) and accompanied by the opinion of counsel referred to in Section 3(a)) directing delivery of the Escrowed Property and Interest, if any, or become liable to (ii) a written agreement executed by the undersigned 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 any agreement. The Escrow Agent shall act on such Final Determination or agreement without further question. (l) The compensation of them or to any person named the Escrow Agent (as payment in the foregoing instructions full) for the failure 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 refusal to comply with such conflicting 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 adverse demandsexpenses 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 entitled to continue to so refrain and refuse to so act until: (a) issued by the rights of adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the other parties and the money, papers, and property involved herein hereto or affected hereby; and/or (b) all differences shall have been adjusted by agreement and on such parties' behalf unless the Escrow Agent shall first have been notified thereof in writing signed by all 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 persons interestedDepository Trust Company and the Federal Reserve Book Entry System.

Appears in 1 contract

Samples: Stock Purchase Agreement (Daisytek International Corporation /De/)

The Escrow Agent. 2.01. It is understood and agreed that (a) The Escrow Agent shall not be bound in any way by, or be deemed to have knowledge of, or any duty under, the duties of Asset Purchase Agreement or any other agreement between or among the Escrow Agentparties hereto, are entirely ministerial, being limited to receiving monies and property hereunder, and holding and disbursing such monies and property in accordance with other than this Agreement. The Escrow Agent shall have no duty duties other than those expressly imposed on it herein and shall not be liable with respect to any action taken by it, or responsibility any failure on its part to enforce the collection or demand payment of any funds deposited into the Escrow Account. Ifact, for any reason, any check deposited into the Escrow Account shall be returned unpaid except to the Escrow Agentextent that such actions constitute a breach of this Agreement, the sole duty of bad faith, fraud, gross negligence or willful misconduct. In no event shall the Escrow Agent shall be to return the check to the Company. 2.02 liable for incidental, indirect, special, consequential or punitive damages. The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or shall have no liability with respect to the form transfer or execution of the same, or the identity, authority, or rights distribution of any person executing funds effected by the Escrow Agent pursuant to wiring or depositing transfer instructions provided to the same. 2.04 Escrow Agent by any party to this Agreement. The Escrow Agent shall not be required to take or be bound by notice of any default of any person or obligated to take any legal action or to commence any proceedings in connection with respect this Agreement, or to appear in, prosecute or defend in any such default involving any expense legal action or liability, unless notice in writing is given to an officer of the Escrow Agent of such default by the undersigned or any of them, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefromproceedings. 2.05 (b) The Escrow Agent makes no representations and has no responsibility as to the validity, genuineness or sufficiency of any of the documents or instruments delivered to it hereunder. The Escrow Agent (i) shall not be liable for acting on entitled to rely upon any order, judgment, certification, demand, notice, request, waiver, consent, receipt, instrument or other paper writing delivered to it hereunder without being required to determine the authenticity or document the correctness of any fact stated therein or the propriety or validity of the service thereof and (ii) may act in reliance upon any instrument or signature reasonably believed by the Escrow Agent it to be genuine and may assume that any person purporting to have been signed by the proper party give notice, receipt or parties. 2.06 The Escrow Agent shall not be liable for advice or make any error of judgment statement or for execute any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing document in connection herewith, except its own gross negligence and willful misconduct. 2.07 The Escrow Agent shall not be answerable for with the default or misconduct of any agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have provisions hereof has been selected with reasonable care. 2.08 duly authorized to do so. The Escrow Agent may consult act in reliance upon the advice of counsel satisfactory to it in reference to any matter in connection with legal counsel in the event of any dispute or question as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunder, and the Escrow Agent shall incur no liability this Agreement and shall be fully protected not incur any liability for any action taken in acting good faith in accordance with the opinion and instructions of such counseladvice. 2.09 (c) In the event of any disagreement between the undersigned or any of them, the person or persons named in the foregoing instructions, and/or any other person, parties hereto resulting in adverse claims and/or or demands being made in connection with or for any papers, moneythe Escrow Fund, or property involved herein or affected herebyin 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 at its option to refuse to comply with any such claim, refrain from acting until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the amount of the Escrow Fund in dispute or demand so long as such disagreement shall continue and(ii) written instructions jointly executed by the Seller and the Purchaser directing delivery of the amount of the Escrow Fund in dispute, in so refusingwhich event the Escrow Agent shall deliver the amount of the Escrow Fund in dispute in accordance with such order or instructions. Any court order referred to in clause (i) above shall be accompanied by a legal opinion by counsel for the presenting party reasonably satisfactory to the Escrow Agent to the effect that said order or determination is final and nonappealable. The Escrow Agent shall act on such court order and legal opinion without further questions. In addition, in the event of any dispute or disagreement relating to this Agreement or concerning the duties of the Escrow Agent hereunder, the Escrow Agent shall not be or become liable have the right to deposit all property held under this Agreement into the undersigned or registry of any court of them or to any person named in competent jurisdiction and notify the foregoing instructions for the failure or refusal to comply with parties hereto of such conflicting or adverse demandsdeposit, and thereupon the Escrow Agent shall be entitled to continue to so refrain discharged from all further duties and refuse to so act until: (a) the rights of adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein or affected hereby; and/or (b) all differences shall have been adjusted by agreement and the responsibilities as Escrow Agent shall have been notified thereof in writing signed by all of the persons interestedunder this Agreement.

Appears in 1 contract

Samples: Escrow Agreement (Interland Inc /Mn/)

The Escrow Agent. 2.01. It is understood (a) The duties, responsibilities and agreed that the duties obligations of Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied against the Escrow Agent. The Escrow Agent shall not be subject to, are entirely ministerialnor required to comply with, being limited any other agreement to receiving monies and property hereunderwhich the Company or the Dealer Manager is a party, and holding and disbursing such monies and property 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. The Escrow Agent shall have no duty or responsibility to enforce ) from the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow AgentCompany, the sole duty of the Escrow Agent shall be to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter Dealer Manager or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 an entity acting on its behalf. The Escrow Agent shall not be required to take expend or be bound by notice risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any default of its duties hereunder. (b) If at any person time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Property (including but not limited to take any action with respect orders of attachment or garnishment or other forms of levies or injunctions or stays relating to such default involving any expense or liability, unless notice in writing is given to an officer the transfer of the Escrow Property), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such default by the undersigned judicial or any administrative order, judgment, decree, writ or other form of themjudicial or administrative process, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on to any noticeof the parties hereto or to any other person or entity even though such order, requestjudgment, waiverdecree, consent, receipt, writ or other paper process may be subsequently modified or document believed by the Escrow Agent to be genuine and vacated or otherwise determined to have been signed by the proper party without legal force or partieseffect. 2.06 (c) The Escrow Agent shall not be liable for any error of judgment action taken or omitted or for any act done loss or step taken injury resulting from its actions or omitted 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, the Dealer Manager, or any entity acting on behalf of the Company, (ii) for any indirect, consequential, punitive or special damages, multiple damages under M.G.L. c. 93A or any other authority, damages for lost profits, damages for emotional distress, or attorney’s fees and costs, all 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 good faithaccordance 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 for any mistake loss of fact interest or lawincome incident to any such delays, or (v) for anything which it may do 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. The provisions of this subsection shall survive the termination of this Agreement or refrain from doing in connection herewith, except its own gross negligence and willful misconductthe earlier resignation or removal of the Escrow Agent. 2.07 (d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not paid within fifteen (15) calendar days of when they are due, the Escrow Agent may reimburse itself therefore from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent shall not be answerable for the default or misconduct may in its sole discretion withhold from any distribution of any agentinterest earned in respect of the Escrow Property an amount it believes would, attorneyupon sale or liquidation, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable careproduce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder. 2.08 (e) The Escrow Agent may consult with legal counsel in of its own choosing, at the event expense of any dispute or question the Company as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunderany matter relating to this Agreement, and the Escrow Agent shall not incur no any liability in acting in good faith in accordance with any advice from such counsel. Reliance on such advice of counsel shall not effect or be deemed to be a waiver of the Escrow Agent’s attorney-client privilege or any other applicable privilege or protection. (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, the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility, or any computer or other technological malfunction). (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 fully protected required to invest any funds held hereunder except as directed in this Agreement. (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 its own gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or the Dealer Manager or is not in the form the Company or the Dealer Manager 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 expenses) it may incur with its acting in accordance with the opinion and instructions of any such counselcommunication. 2.09 (k) In the event of any disagreement between ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the undersigned or any of themEscrow 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 which eliminates such ambiguity or uncertainty. (l) In the event of any dispute between or conflicting claims among the Company and any other person or persons named in the foregoing instructions, and/or entity with respect to any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyEscrow Property, the Escrow Agent shall be entitled at entitled, in its option sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such claim, or demand Escrow Property for so long as such disagreement dispute or conflict shall continue andcontinue, in so refusing, and the Escrow Agent shall not be or become liable in any way to the undersigned Company or any of them or to any other person named in the foregoing instructions for the failure or refusal to comply with such conflicting claims, demands or adverse demands, and the instructions. The Escrow Agent shall be entitled to continue to so refrain and refuse to so act until: , to its sole satisfaction, either (ai) the rights of such conflicting or adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein claims or affected hereby; and/or (b) all differences demands shall have been adjusted 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 and between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have been notified thereof 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 in writing signed by all its sole discretion, to the effect that said order, judgment or decree represents a final adjudication of the persons interestedrights 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 may 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 proceeding shall be paid by, and shall be deemed an obligation of, the Company. (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) 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 Company 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 Company or the Dealer Manager will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent. (o) The Escrow Agent shall provide to the Company and the Dealer Manager 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 Company and the Dealer Manager unless the Escrow Agent is notified in writing, by the Company or the Dealer Manager, to the contrary within thirty (30) business days of the date of such statement.

Appears in 1 contract

Samples: Subscription Escrow Agreement (American Realty Capital Trust, Inc.)

The Escrow Agent. 2.01. It is understood and agreed that (a) The Escrow Agent shall not be bound in any way by, or be deemed to have knowledge of, or any duty under, the duties of Asset Purchase Agreement or any other agreement between or among the Escrow Agentparties hereto, are entirely ministerial, being limited to receiving monies and property hereunder, and holding and disbursing such monies and property in accordance with other than this Agreement. The Escrow Agent shall have no duty duties other than those expressly imposed on it herein and shall not be liable with respect to any action taken by it, or responsibility any failure on its part to enforce the collection or demand payment of any funds deposited into the Escrow Account. Ifact, for any reason, any check deposited into the Escrow Account shall be returned unpaid except to the Escrow Agentextent that such actions constitute a breach of this Agreement, the sole duty of bad faith, fraud, gross negligence or willful misconduct. In no event shall the Escrow Agent shall be to return the check to the Company. 2.02 liable for incidental, indirect, special, consequential or punitive damages. The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or shall have no liability with respect to the form transfer or execution of the same, or the identity, authority, or rights distribution of any person executing funds effected by the Escrow Agent pursuant to wiring or depositing transfer instructions provided to the same. 2.04 Escrow Agent by any party to this Agreement. The Escrow Agent shall not be required to take or be bound by notice of any default of any person or obligated to take any legal action or to commence any proceedings in connection with respect this Agreement, or to appear in, prosecute or defend in any such default involving any expense legal action or liability, unless notice in writing is given to an officer of the Escrow Agent of such default by the undersigned or any of them, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefromproceedings. 2.05 (b) The Escrow Agent makes no representations and has no responsibility as to the validity, genuineness or sufficiency of any of the documents or instruments delivered to it hereunder. The Escrow Agent (i) shall not be liable for acting on entitled to rely upon any order, judgment, certification, demand, notice, request, waiver, consent, receipt, instrument or other paper writing delivered to it hereunder without being required to determine the authenticity or document the correctness of any fact stated therein or the propriety or validity of the service thereof and (ii) may act in reliance upon any instrument or signature reasonably believed by the Escrow Agent it to be genuine and may assume that any person purporting to have been signed by the proper party give notice, receipt or parties. 2.06 The Escrow Agent shall not be liable for advice or make any error of judgment statement or for execute any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing document in connection herewith, except its own gross negligence and willful misconduct. 2.07 The Escrow Agent shall not be answerable for with the default or misconduct of any agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have provisions hereof has been selected with reasonable care. 2.08 duly authorized to do so. The Escrow Agent may consult act in reliance upon the advice of counsel satisfactory to it in reference to any matter in connection with legal counsel in the event of any dispute or question as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunder, and the Escrow Agent shall incur no liability this Agreement and shall be fully protected no incur any liability for any action taken in acting good faith in accordance with the opinion and instructions of such counseladvice. 2.09 (c) In the event of any disagreement between the undersigned or any of them, the person or persons named in the foregoing instructions, and/or any other person, parties hereto resulting in adverse claims and/or or demands being made in connection with or for any papers, moneythe Rental Escrow Fund, or property involved herein or affected herebyin 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 at its option to refuse to comply with any such claim, or demand so long as such disagreement shall continue and, in so refusing, refrain from acting until the Escrow Agent shall not be have received a court order, arbitration award, or become liable to joint instructions constituting a Final Resolution, in which event the undersigned or any Escrow Agent shall deliver the amount of them or to any person named the Rental Escrow Fund in dispute in accordance with such Final Resolution. In addition, in the foregoing instructions for event of any dispute or disagreement relating to this Agreement or concerning the failure or refusal duties of the Escrow Agent hereunder, the Rental Escrow Agent shall have the right to comply with deposit all property held under this Agreement into the registry of any court of competent jurisdiction and notify the parties hereto of such conflicting or adverse demandsdeposit, and thereupon the Escrow Agent shall be entitled to continue to so refrain discharged from all further duties and refuse to so act until: (a) the rights of adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein or affected hereby; and/or (b) all differences shall have been adjusted by agreement and the responsibilities as Escrow Agent shall have been notified thereof in writing signed by all of the persons interestedunder this Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Interland Inc /Mn/)

The Escrow Agent. 2.01. It is understood (a) The duties, responsibilities and agreed that the duties obligations of Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred to or implied against the Escrow Agent, are entirely ministerial, being limited to receiving monies and property hereunder, and holding and disbursing such monies and property in accordance with this Agreement. The Escrow Agent shall have no duty or responsibility not be subject to, nor required to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reasoncomply with, any check deposited into other agreement to which the Escrow Account shall be returned unpaid to the Escrow AgentFund is a party, the sole duty of the Escrow Agent shall be to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which even though reference thereto may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuinenessmade herein, or validity of to comply with any instrument deposited direction or instruction (other than those contained herein or delivered in accordance with it, this Escrow Agreement) from the Fund or with respect to any entity acting on the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 Fund’s behalf. The Escrow Agent shall not be required to take expend or be bound by notice risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any default of its duties hereunder. (b) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Funds (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 Funds), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified 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 gross negligence or willful misconduct on its part, as such is proved in a court or tribunal of competent jurisdiction. 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 Fund or any entity acting on behalf of the Fund, (ii) for any indirect, cumulative, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated unless such damages arise from the gross negligence, intentional acts, or willful misconduct of the Escrow Agent, or (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, unless the Escrow Agent’s selection of such nominees, correspondents, designees, agents, subagents or subcustodians of the Escrow Agent involves gross negligence or willful misconduct on part of the Escrow Agent. (d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Funds and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Funds for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Funds 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 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, 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 take 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 such default involving any expense securities or liability, unless notice in writing is given other property deposited hereunder. (i) The Escrow Agent shall not be under any duty to an officer give the Escrow Funds 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. 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 Fund and may, at its own option, include in such request the course of such default by action it proposes to take and the undersigned or date on which it proposes to act, regarding any of them, matter arising in connection with its duties and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 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 Escrow Agent sends such request for instructions and its proposed course of action to Fund by fax or electronic mail (receipt confirmed) or by overnight courier, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions from the Fund to refrain from taking the proposed action. (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 as proved in a court or tribunal of competent jurisdiction, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Fund or is not in the form the Fund sent or intended to send (whether due to fraud, distortion or otherwise). The Fund 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, request, waiver, consent, receipt, instruction or other paper or document believed communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to be genuine and to have been signed by retain possession of the proper party or parties. 2.06 Escrow Funds. The Escrow Agent shall may, but is not be liable for any error obligated to, inform the Fund in writing of judgment the ambiguity. If the Fund provides the Escrow Agent with written instructions which eliminates such ambiguity or for any act done or step taken or omitted by it in good faithuncertainty, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own gross negligence and willful misconduct. 2.07 The the Escrow Agent shall not be answerable for the default or misconduct of any agent, attorney, or employee appointed by it if comply with such agent, attorney, or employee shall have been selected with reasonable carewritten instructions. 2.08 The Escrow Agent may consult with legal counsel in (m) In the event of any dispute between or question as to conflicting claims among the consideration of the foregoing instructions or the Escrow Agent’s duties hereunder, Fund and the Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of such counsel. 2.09 In the event of any disagreement between the undersigned or any of them, the other person or persons named in the foregoing instructions, and/or entity with respect to any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyEscrow Funds, the Escrow Agent shall be entitled at entitled, in its option sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such claim, or demand Escrow Funds so long as such disagreement dispute or conflict shall continue andcontinue, in so refusing, and the Escrow Agent shall not be or become liable in any way to the undersigned Fund or any of them or to any other person named in the foregoing instructions for the 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 demandsclaims 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 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 proceeding shall be paid by, and shall be deemed an obligation of, the Fund. (n) 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. (o) The Escrow Agent does not have any interest in the Escrow Funds deposited hereunder but is serving as escrow holder only and having only possession thereof. The Fund shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Funds 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 Fund will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent. (p) The Escrow Agent shall provide to the Fund monthly statements identifying transactions, transfers or holdings of Escrow Funds and each such statement shall be deemed to be correct and final upon receipt thereof by the Fund unless the Escrow Agent is notified in writing, by the Fund, to the contrary within thirty (30) business days of the date of such statement. (q) The Fund shall deliver to the Escrow Agent a list of authorized signatories, as set forth in the attached Schedule 2 hereto, with respect to any notice, certificate, instrument, demand, request, direction, instruction, waiver, receipt, consent or other document or communication required or permitted to be furnished to the Escrow Agent hereunder, and the Escrow Agent shall be entitled to continue rely on such list with respect to so refrain and refuse any party until a new list is furnished by such party to so act until: the Escrow Agent. Furthermore, in the event funds transfer instructions are given (a) other than in writing at the rights time of adverse claimants have been finally adjudicated execution of this Agreement), whether in a court assuming and having jurisdiction writing, by fax or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the parties and the moneyperson or persons designated on Schedule 3 hereto, papers, and property involved herein or affected hereby; and/or (b) all differences shall have been adjusted by agreement and the Escrow Agent shall have been notified thereof may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers designated for such call-backs may be changed only in a writing signed actually received by all of the persons interestedEscrow Agent.

Appears in 1 contract

Samples: Subscription Escrow Agreement (Superfund Gold, L.P.)

The Escrow Agent. 2.01. It is understood (a) The duties, responsibilities and agreed that the duties obligations of Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied against the Escrow Agent. The Escrow Agent shall not be subject to, are entirely ministerialnor required to comply with, being any other agreement, including but not limited to receiving monies and property hereunderthe PSA Agreement, and holding and disbursing such monies and property to which W&T or BEEOO 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 W&T or BEEOO. The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty of the Escrow Agent shall be to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 The Escrow Agent shall not be required to take expend or be bound by notice risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any default of its duties hereunder. (b) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow 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 Property), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified 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, notice, demand, 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 forth in Exhibit “B” hereto for all services rendered by it hereunder. If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and 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, 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 take 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 such default involving Escrow Property deposited hereunder. (h) The Escrow Agent shall not be under any expense 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 liability, unless notice in writing is given to an officer of accrue interest. (i) At any time the 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 such default by action it proposes to take and the undersigned or date on which it proposes to act, regarding any of them, matter arising in connection with its duties and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 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, request, waiver, consent, receipt, instruction or other paper or document believed communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to be genuine and to have been retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the proper party W&T and BEEOO which eliminates such ambiguity or partiesuncertainty. 2.06 The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own gross negligence and willful misconduct. 2.07 The Escrow Agent shall not be answerable for the default or misconduct of any agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable care. 2.08 The Escrow Agent may consult with legal counsel in (l) In the event of any dispute between or question as conflicting claims among W&T or BEEOO with respect to the consideration of the foregoing instructions or the any Escrow Agent’s duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of such counsel. 2.09 In the event of any disagreement between the undersigned or any of them, the person or persons named in the foregoing instructions, and/or any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyProperty, the Escrow Agent shall be entitled at entitled, in its option sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such claim, or demand Escrow Property so long as such disagreement dispute or conflict shall continue andcontinue, in so refusing, and the Escrow Agent shall not be or become liable to the undersigned or in any of them or to any person named in the foregoing instructions way for the failure or refusal to comply with such conflicting claims, demands or adverse demands, and the instructions. The Escrow Agent shall be entitled to continue to so refrain and refuse to so act until: , in its sole discretion, either (ai) the rights of such conflicting or adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein claims or affected hereby; and/or (b) all differences demands shall have been adjusted 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 and between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have been notified thereof in writing signed 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 all 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 persons interestedrights 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: Operated Escrow Agreement (Black Elk Energy Finance Corp.)

The Escrow Agent. 2.01. It is understood (a) In order to comply with the laws, rules, regulations and agreed that executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the duties funding of terrorist activities and money laundering, including Section 326 of the Escrow AgentUSA PATRIOT Act of the United States (“Applicable Law”), are entirely ministerial, being limited to receiving monies and property hereunder, and holding and disbursing such monies and property in accordance with this Agreement. The the Escrow Agent shall have no duty or responsibility is required to enforce obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the collection or demand payment parties hereto. Accordingly, each of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid parties agree to provide to the Escrow Agent, upon request and from time to time, such identifying information and documentation as may be available to such party in order to enable the sole duty Escrow Agent to comply with Applicable Law. (b) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow 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 shall be to return Property), the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable authorized to comply therewith in any manner whatsoever for the sufficiency, correctness, genuineness, it or validity legal counsel of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 The Escrow Agent shall not be required to take or be bound by notice of any default of any person or to take any action with respect to such default involving any expense or liability, unless notice in writing is given to an officer of its own choosing deems appropriate. If the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of such default by judicial or administrative process, the undersigned or any of them, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on to any noticeof the parties hereto or to any other person or entity even though such order, requestjudgment, waiverdecree, consentwrit or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect; provided, receipt, or other paper or document believed by that the Escrow Agent to be genuine shall remain liable for its gross negligence and to have been signed by the proper party or partieswillful misconduct. 2.06 (c) The Escrow Agent shall not be liable for any error of judgment 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, other than resulting from the Escrow Agent’s gross negligence or willful misconduct, shall the Escrow Agent be liable: (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from Parent and the Stockholder Representative or any entity acting on behalf of Parent and the Stockholder Representative; (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; or (iv) for any direct money damages in excess of the value of the Escrow Property, valued as of the date of deposit. (d) The Escrow Agent shall not incur any liability for not performing any act done or step taken fulfilling any duty, obligation or omitted 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). (e) The Escrow Agent, following reasonable inquiry (as customarily exercised in the ordinary course of business), 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 in good faith, to be genuine and may assume that any person purporting to give receipt or for advice to make any mistake of fact statement or law, or for anything which it may do or refrain from doing execute any document in connection herewith, except its own gross negligence and willful misconductwith the provisions hereof has been duly authorized to do so. 2.07 (f) The Escrow Agent shall not be answerable responsible in any respect for the default form, execution, validity, value or misconduct genuineness of any agent, attorneydocuments or securities deposited hereunder, or employee appointed by it if such agent, attorneyfor any description therein, or employee shall have been selected with reasonable care. 2.08 for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or endorsement, in the absence of the Escrow Agent’s gross negligence or willful misconduct. 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. (g) 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. Uninvested funds held hereunder shall not earn or accrue interest. (h) 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 and willful misconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of Parent or the Stockholder Representative or is not in the form Parent and the Stockholder Representative sent or intended to send (whether due to fraud, distortion or otherwise). Parent and the Stockholder Representative shall jointly and severally indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may consult incur with legal counsel its acting in accordance with any such communication, except with respect to the Escrow Agent’s gross negligence or willful misconduct. (i) 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 Parent and the Stockholder Representative, which eliminates such ambiguity or uncertainty. (j) In the event of any dispute between or question as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunder, conflicting claims among Parent and the Escrow Agent shall incur no liability Stockholder Representative and shall be fully protected in acting in accordance with the opinion and instructions of such counsel. 2.09 In the event of any disagreement between the undersigned or any of them, the other person or persons named in the foregoing instructions, and/or entity with respect to any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyEscrow Property, the Escrow Agent shall be entitled at entitled, in its option sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such claim, or demand Escrow Property so long as such disagreement dispute or conflict shall continue andcontinue, in so refusing, and the Escrow Agent shall not be or become liable in any way to Parent and the undersigned or any of them or to any person named in the foregoing instructions Stockholder Representative for the failure or refusal to comply with such conflicting claims, demands or adverse demands, and the instructions. The Escrow Agent shall be entitled to continue to so refrain and refuse to so act until: , in its sole discretion, either: (ai) the rights of such conflicting or adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein claims or affected hereby; and/or (b) all differences demands shall have been adjusted 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 and between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent; or (ii) the Escrow Agent shall have been notified thereof in writing signed 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 all 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 persons interestedrights 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 proceeding shall be paid by, and shall be deemed a joint and several obligation of Parent and the Stockholder Representative.

Appears in 1 contract

Samples: Merger Agreement (Gores Holdings II, Inc.)

The Escrow Agent. 2.01. It is understood (a) The duties, responsibilities and agreed that the duties obligations of Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied against the Escrow Agent. The Escrow Agent shall not be subject to, are entirely ministerialnor required to comply with, being limited any other agreement to receiving monies and property hereunderwhich the Company is a party, and holding and disbursing such monies and property 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. The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty of the Escrow Agent shall be to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between ) from the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 an entity acting on its behalf. The Escrow Agent shall not be required to take expend or be bound by notice risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any default of its duties hereunder. (b) If at any person time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Property (including but not limited to take any action with respect orders of attachment or garnishment or other forms of levies or injunctions or stays relating to such default involving any expense or liability, unless notice in writing is given to an officer the transfer of the Escrow Property), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such default by the undersigned judicial or any administrative order, judgment, decree, writ or other form of themjudicial or administrative process, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on to any noticeof the parties hereto or to any other person or entity even though such order, requestjudgment, waiverdecree, consent, receipt, writ or other paper process may be subsequently modified or document believed by the Escrow Agent to be genuine and vacated or otherwise determined to have been signed by the proper party without legal force or partieseffect. 2.06 (c) The Escrow Agent shall not be liable for any error of judgment action taken or omitted or for any act done loss or step taken injury resulting from its actions or omitted 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, or in accordance with the terms hereof, including without limitation any liability for any mistake delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of fact or lawthe Escrow Property, or any loss of interest or income incident to any such delays, or (v) for anything which it may do or refrain from doing an amount in connection herewithexcess of the value of the Escrow Property, except its own gross negligence and willful misconductvalued as of the date of deposit, but only to the extent of direct money damages. 2.07 (d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent shall not be answerable for the default or misconduct may in its sole discretion withhold from any distribution of any agentinterest earned in respect of the Escrow Property an amount it believes would, attorneyupon sale or liquidation, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable careproduce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder. 2.08 (e) The Escrow Agent may consult with legal counsel in of its own choosing, at the event expense of any dispute or question the Company as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunderany matter relating to this Agreement, and the Escrow Agent shall not incur no 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 fully protected 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 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 expenses) it may incur with its acting in accordance with the opinion and instructions of any such counselcommunication. 2.09 (k) In the event of any disagreement between ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the undersigned or any of themEscrow 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 which eliminates such ambiguity or uncertainty. (l) In the event of any dispute between or conflicting claims among the Company and any other person or persons named in the foregoing instructions, and/or entity with respect to any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyEscrow Property, the Escrow Agent shall be entitled at entitled, in its option sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such claim, or demand Escrow Property so long as such disagreement dispute or conflict shall continue andcontinue, in so refusing, and the Escrow Agent shall not be or become liable in any way to the undersigned Company or any of them or to any other person named in the foregoing instructions for the failure or refusal to comply with such conflicting claims, demands or adverse demands, and the instructions. The Escrow Agent shall be entitled to continue to so refrain and refuse to so act until: , in its sole discretion, either (ai) the rights of such conflicting or adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein claims or affected hereby; and/or (b) all differences demands shall have been adjusted 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 and between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have been notified thereof in writing signed 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 all 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 persons interestedrights 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 proceeding shall be paid by, and shall be deemed an obligation of, the Company. (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) 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 Company 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 Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent. (o) 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 the Company unless the Escrow Agent is notified in writing, by the Company, to the contrary within thirty (30) business days of the date of such statement.

Appears in 1 contract

Samples: Subscription Escrow Agreement (American Realty Capital Trust, Inc.)

The Escrow Agent. 2.01To induce the Escrow Agent to act hereunder, it is further agreed by Buyer and 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 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. It is understood and agreed that Uninvested Escrowed Property held hereunder shall not earn or accrue interest. (b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into (c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, are entirely ministerialBuyer and Seller shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against any and all losses, being limited to receiving monies liabilities, claims, actions, damages and property hereunderexpenses, including reasonable attorneys' fees and holding disbursements, arising out of and disbursing such monies and property in accordance connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the 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 Escrowed Property or any loss of interest incident to any such delays. This Section 10(c) shall survive notwithstanding any termination of this Agreement or the resignation 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. 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 advice 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. Seller 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 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 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 earlier of (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 Buyer and 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 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 duty or responsibility to enforce for the collection or demand payment contents of any funds deposited into writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty of the Escrow Agent shall be to return the check to the Companycontents thereof. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 The Escrow Agent shall not be required to take or be bound by notice of any default of any person or to take any action with respect to such default involving any expense or liability, unless notice in writing is given to an officer of the Escrow Agent of such default by the undersigned or any of them, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on any notice, request, waiver, consent, receipt, or other paper or document believed by the Escrow Agent to be genuine and to have been signed by the proper party or parties. 2.06 The Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own gross negligence and willful misconduct. 2.07 The Escrow Agent shall not be answerable for the default or misconduct of any agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable care. 2.08 The Escrow Agent may consult with legal counsel in the event of any dispute or question as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of such counsel. 2.09 (k) In the event of any disagreement between the undersigned or any of them, the person or persons named in the foregoing instructions, and/or any other person, Buyer and Seller resulting in adverse claims and/or or demands being made in connection with or for any papers, moneythe Escrowed Property, or property involved herein or affected herebyin 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 at its option to refuse to comply with any such claim, or demand so long as such disagreement shall continue and, in so refusing, retain the Escrowed Property until the Escrow Agent shall not be have received (i) a Final Determination (accompanied by the opinion of counsel referred to in Section 3) directing delivery of the Escrowed Property or become liable to (ii) a written agreement executed by Buyer and Seller directing delivery of the undersigned Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such Final Determination or any agreement. The Escrow Agent shall act on such Final Determination or agreement without further question. (l) The compensation of them or to any person named the Escrow Agent (as payment in the foregoing instructions full) for the failure services to be rendered by the Escrow Agent hereunder shall be the amount of $250 paid by Seller at the time of execution of this Agreement and $ annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or refusal made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel) not to comply with such conflicting exceed $1,000 absent any litigation or adverse demandsother dispute arising under this Agreement. All fees and expenses of the Escrow Agent hereunder shall be paid by Seller. 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. The Escrow Agent's fee may be adjusted from time to time to conform to its then current guidelines. (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 entitled to continue to so refrain and refuse to so act until: (a) issued by the rights of adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the other parties and the money, papers, and property involved herein hereto or affected hereby; and/or (b) all differences shall have been adjusted by agreement and on such parties' behalf unless the Escrow Agent shall first have been notified thereof in writing signed by all 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 the persons interested.any United States central securities depository it deems appropriate,

Appears in 1 contract

Samples: Asset Purchase Agreement (Ross Technology Inc)

The Escrow Agent. 2.01. It is understood (a) The duties, responsibilities and agreed that the duties of the Escrow Agent, are entirely ministerial, being limited to receiving monies and property hereunder, and holding and disbursing such monies and property in accordance with this Agreement. The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty obligations of the Escrow Agent shall be limited to return those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied against the check to the Company. 2.02 Escrow Agent. The Escrow Agent is shall not a party be subject to, and is not bound bynor required to comply with, any other agreement between to which the Company and the Underwriter or the Underwriter and the Selling GroupTrustee is a party, which even though reference thereto may be evidenced by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuinenessmade herein, or validity of to comply with any instrument deposited direction or instruction (other than those contained herein or delivered in accordance with it, or with respect to this Agreement) from the form or execution of the same, Company or the identity, authority, Trustee or rights of any person executing or depositing the same. 2.04 an entity acting on its behalf. The Escrow Agent shall not be required to take expend or be bound by notice risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any default of its duties hereunder. (b) If at any person time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Property (including but not limited to take any action with respect orders of attachment or garnishment or other forms of levies or injunctions or stays relating to such default involving any expense or liability, unless notice in writing is given to an officer the transfer of the Escrow Property), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such default by the undersigned judicial or any administrative order, judgment, decree, writ or other form of themjudicial or administrative process, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on to any noticeof the parties hereto or to any other person or entity even though such order, requestjudgment, waiverdecree, consent, receipt, writ or other paper process may be subsequently modified or document believed by the Escrow Agent to be genuine and vacated or otherwise determined to have been signed by the proper party without legal force or partieseffect. 2.06 (c) The Escrow Agent shall not be liable for any error of judgment action taken or omitted or for any act done loss or step taken injury resulting from its actions or omitted its performance or lack of performance of its duties hereunder in the absence of bad faith, 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 Trustee or any entity acting on behalf of the 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, or in accordance with the terms hereof, including without limitation any liability for any mistake delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of fact or lawthe Escrow Property, or any loss of interest or income incident to any such delays, or (v) for anything which it may do or refrain from doing an amount in connection herewithexcess of the value of the Escrow Property, except its own gross negligence and willful misconductvalued as of the date of deposit, but only to the extent of direct money damages. 2.07 (d) If any fees, reasonable out-of-pocket expenses or costs incurred by, or any obligations owed to, the Escrow Agent 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 may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent shall not be answerable for the default or misconduct may in its sole discretion withhold from any distribution of any agentinterest earned in respect of the Escrow Property an amount it believes would, attorneyupon sale or liquidation, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable careproduce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder. 2.08 (e) The Escrow Agent may consult with legal counsel in of its own choosing, at the event expense of any dispute or question the Company, as to the consideration of the foregoing instructions or the Escrow Agent’s duties hereunderany matter relating to this Agreement, and the Escrow Agent shall not incur no 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 fully protected 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 Company or the Trustee or is not in the form the Company and the Trustee sent or intended to send (whether due to fraud, distortion or otherwise). The 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 the opinion and instructions of any such counselcommunication. 2.09 (k) In the event of any disagreement between ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the undersigned or any of themEscrow 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 or the Trustee, which eliminates such ambiguity or uncertainty. (l) In the event of any dispute between or conflicting claims among the Company and the Trustee and any other person or persons named in the foregoing instructions, and/or entity with respect to any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyEscrow Property, the Escrow Agent shall be entitled at entitled, in its option sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such claim, or demand Escrow Property so long as such disagreement dispute or conflict shall continue andcontinue, in so refusing, and the Escrow Agent shall not be or become liable in any way to the undersigned Company or any of them or to any person named in the foregoing instructions Trustee for the failure or refusal to comply with such conflicting claims, demands or adverse demands, and the instructions. The Escrow Agent shall be entitled to continue to so refrain and refuse to so act until: , in its sole discretion, either (ai) the rights of such conflicting or adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein claims or affected hereby; and/or (b) all differences demands shall have been adjusted 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 and 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 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 reasonable costs and reasonable out-of-pocket expenses (including attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed a sole obligation of the Company. (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) 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 Company 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. The Company shall be treated as the owner of the Escrow 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 Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications. It is understood that 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 notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent. (o) 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 the Company and the Trustee unless the Escrow Agent is notified thereof in writing, by the Company and the Trustee, to the contrary within thirty (30) Business Days of the date of such statement. The Company acknowledges 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 Company specifically waives 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 signed by all among the parties hereto, the Company shall retain the authority to institute, participate and join in any plan of reorganization, readjustment, merger or consolidation with respect to the persons interestedissuer of any securities held hereunder, and, in general, to exercise each and every other power or right with respect to each such asset or investment as individuals generally have and enjoy with respect to their own assets and investment, including power to vote upon any securities.

Appears in 1 contract

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

The Escrow Agent. 2.01. It is understood and agreed that 6.1 Notwithstanding anything herein to the duties contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Agent, are entirely ministerial, being limited to receiving monies Shares/Escrow Funds as directed by a writing jointly signed by the SAC Representative and property hereunder, SM&A. The reasonable fees and holding and disbursing such monies and property in accordance with this Agreement. The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty 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 to return the check to the Company. 2.02 The Escrow Agent is not a party to, and is not bound by, any agreement between the Company and the Underwriter or the Underwriter and the Selling Group, which may be evidenced borne by or arise out of the foregoing instructions. 2.03 The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same. 2.04 The Escrow Agent shall not be required to take or be bound by notice of any default of any person or to take any action with respect to such default involving any expense or liability, unless notice in writing is given to an officer of the Escrow Agent of such default by the undersigned or any of them, and unless it is indemnified in a manner satisfactory to it against any expense or liability arising therefrom. 2.05 The Escrow Agent shall not be liable for acting on any notice, request, waiver, consent, receipt, or other paper or document believed by the Escrow Agent to be genuine and to have been signed by the proper party or parties. 2.06 SM&A. The Escrow Agent shall not be liable for any error act or omission to act under this Agreement, including any and all claims made against the Escrow Agent as a result of judgment or for any act done or step taken or omitted by it its holding the Escrow Shares/Escrow Funds in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewithits own name, except for its own gross negligence and or willful misconduct. 2.07 . The Escrow Agent shall not be answerable for liable for, and the default 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 misconduct claims (including reasonable out-of-pocket expenses) arising out of, any action taken or omitted in good faith hereunder or upon the advice of any agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable care. 2.08 counsel. The Escrow Agent may consult with legal counsel decline to act and shall not be liable for failure to act if in the event of any dispute or question doubt as to the consideration of the foregoing instructions its duties under this Agreement. The Escrow Agent may act upon any instrument or the 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 's duties hereundershall 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 document or agreement, including, but not limited to, the Merger Agreement. 6.2 The Escrow Agent shall incur no liability 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 30 days prior to the date specified for such resignation to take effect. In such event SM&A and the 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 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 fully protected delivered by it to such successor escrow agent or as otherwise shall be designated in acting in accordance with writing by SM&A and the opinion and instructions of such counselSAC Representative. 2.09 6.3 In the event of that the Escrow Agent should at any disagreement between time be confronted with inconsistent or conflicting claims or demands by the undersigned or any of themparties hereto, the person or persons named Escrow Agent shall have the right to interplead said parties in any court of competent jurisdiction and request that such court determine the foregoing instructionsrespective rights of such parties with respect to this Agreement and, and/or any other person, resulting in adverse claims and/or demands being made in connection with or for any papers, money, or property involved herein or affected herebyupon doing so, the Escrow Agent shall be entitled at its option released from any obligations or liability to refuse to comply with either party as a consequence of any such claimclaims 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 demand so long as such disagreement shall continue and, in so refusing, the 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 become liable to pass upon the undersigned validity, binding effect, execution or sufficiency of this Agreement or of any of them amendment or to any person named in the foregoing instructions for the failure or refusal to comply with such conflicting or adverse demands, and the Escrow Agent shall be entitled to continue to so refrain and refuse to so act until: (a) the rights of adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein or affected hereby; and/or (b) all differences shall have been adjusted by agreement and the Escrow Agent shall have been notified thereof in writing signed by all of the persons interestedsupplement hereto.

Appears in 1 contract

Samples: Escrow Agreement (Sm&a Corp)