Exhibit 10.3
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of November 6, 2001 ("Escrow
Agreement"), is by and between CBNY INVESTMENT SERVICES CORP., a New York
corporation ("Depositor"); SUNGARD FINANCIAL SYSTEMS INC., a Delaware
corporation ("Recipient"); and FIRST UNION NATIONAL BANK, a national banking
association, as Escrow Agent hereunder ("Escrow Agent").
BACKGROUND
A. Depositor and Commercial Bank of New York ("CBNY"), the parent
company of Depositor, have entered into a Remote Processing Agreement (the
"Underlying Agreement"), dated as of December 6, 2000, pursuant to which
Recipient provides on-line processing, reporting and related services to CBNY
and Depositor.
B. In connection with the acquisition of CBNY by North Fork Bank,
Depositor desires that the Underlying Agreement be assigned from CBNY to
Depositor pursuant to an Assignment, Assumption, Consent and Amendment
Agreement dated November 5, 2001 among CBNY, Depositor and Recipient
("Assignment Agreement"). Recipient has agreed to such assignment, provided
that Depositor place the sum of Two Hundred Sixteen Thousand Dollars
($216,000.00) in a segregated escrow account to be held by Escrow Agent for
the purpose of securing the payment of monthly fees due to Recipient under
the Underlying Agreement.
C. Escrow Agent has agreed to accept, hold, and disburse the funds
deposited with it and the earnings thereon in accordance with the terms of
this Escrow Agreement.
D. Depositor and Recipient have each appointed the Representatives
(as defined below) to represent them for all purposes in connection with the
funds to be deposited with Escrow Agent, the Underlying Agreement, and this
Escrow Agreement.
E. In order to establish the escrow of funds and to effect the
provisions of the Underlying Agreement, the parties hereto have entered into
this Escrow Agreement.
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, for
themselves, their successors and assigns, hereby agree as follows:
1. Definitions. The following terms shall have the following
meanings when used herein:
1.1 "Depositor Representatives" shall mean Xxxx Xxxxxxxx and
Xxxxxxxx Xxxxxxx or any other person designated in a writing signed by
Depositor and delivered to Escrow Agent and the Recipient Representative in
accordance with the notice provisions of this Escrow Agreement, to act as its
representative under this Escrow Agreement.
1.2 "Escrow Funds" shall mean the funds deposited with Escrow
Agent pursuant to this Agreement, together with any interest and other income
thereon, which funds shall include, without limitation, the initial sum of
Two Hundred Sixteen Thousand Dollars ($216,000.00).
1.3 "Escrow Period" shall mean the period commencing on the date
hereof and ending on December 6, 2005.
1.4 "Joint Written Direction" shall mean a written direction
executed by the Representatives and directing Escrow Agent to disburse all or
a portion of the Escrow Funds or to take or refrain from taking an action
pursuant to this Escrow Agreement.
1.5 "Recipient Representatives" shall mean Xxxxxxx Xxxxxxxxxx,
Xxxxxx Xxxxxx or Xxxxx Xxxxxx or any other person designated in a writing
signed by Recipient and delivered to Escrow Agent and the Depositor
Representative in accordance with the notice provisions of this Escrow
Agreement, to act as its representative under this Escrow Agreement.
1.6 "Representatives" shall mean the Depositor Representative and
the Recipient Representative.
2. Appointment of and Acceptance by Escrow Agent. Depositor,
Recipient and the Representatives hereby appoint Escrow Agent to serve as
escrow agent hereunder. Escrow Agent hereby accepts such appointment and,
upon receipt by wire transfer of the Escrow Funds in accordance with Section
3 below, agrees to hold, invest and disburse the Escrow Funds in accordance
with this Escrow Agreement.
3. Creation of Escrow Funds. On November 6, 2001, Depositor will
transfer the sum of Two Hundred Sixteen Thousand Dollars ($216,000.00) to
Escrow Agent, by wire transfer of immediately available funds, to the
following account:
First Union National Bank
Charlotte, North Carolina
ABA # 000000000
Credit: D/5000000016439
ATTN: Branch CT 1870
for Depositor/Recipient Escrow Account-Number 1572005861
Notify (000) 000-0000
The receipt of the Escrow Amount will be acknowledged by the Escrow Agent in
the form of a receipt.
4. Disbursements of Escrow Funds.
a. Joint Written Direction. Escrow Agent shall disburse Escrow
Funds, at any time and from time to time, in accordance with
a Joint Written Direction.
b. Disbursement Notice. (1) From time to time, Recipient may
submit a written notice of a claim ("Claim"), subject to the
terms and provisions of Section 3 of the Assignment
Agreement, to the Escrow Agent and Depositor, which notice
shall include an amount as to which Recipient claims payment
from the Escrow Funds (a "Disbursement Notice"). Unless
Depositor, by written notice (a "Disbursement Objection
Notice") to the Escrow Agent and Recipient, objects to the
payment requested in a Disbursement Notice within fifteen
(15) calendar days after such Disbursement Notice is
received by Depositor (the "Disbursement Objection Period"),
the Escrow Agent shall, within three business days after
expiration of the Disbursement Objection Period, release
funds from the Escrow Funds in the amount specified in the
Disbursement Notice, to the extent claim does not exceed the
Escrow Funds, to Recipient in immediately available funds.
If a Disbursement Objection Notice shall object as to less
than the entire amount of the payment subject to the
Disbursement Notice, then the Escrow Agent shall release
such amount specified in the Disbursement Notice (less the
amount objected to in the Disbursement Objection Notice) in
the manner aforesaid. If Depositor provides a Disbursement
Objection Notice in the manner aforesaid, the Escrow Agent
will not transfer funds from the Escrow Funds (to the extent
specified in the Disbursement Objection Notice) until the
receipt by the Escrow Agent of (i) a Joint Written Objection
(as defined herein) or (ii) a Final Order (as hereinafter
defined) providing for a release from the Escrow Funds in
respect of the Disbursement Notice. For purposes of this
Agreement, a "Final Order" shall mean a final order,
judgment or decree of a court of competent jurisdiction,
which order, judgment or decree is not subject to appeal.
c. Expiration of Escrow Period. Upon the expiration of the
Escrow Period, Escrow Agent shall distribute, any remaining
Escrow Funds, and all interest that has accrued thereon, to
Depositor, unless one or more Disbursement Notices have been
given by Recipient pursuant to Section 4(b) hereof and the
full amount of the Claim or Claims set forth therein shall
not have been satisfied, in which case an amount equal to
the aggregate dollar amount of such unsatisfied Claim or
Claims (as shown in such Disbursement Notice or Disbursement
Notices), but not to exceed the Escrow Funds, shall not be
distributed and shall be retained by the Escrow Agent in an
account (the "Retained Account") until the Escrow Agent
receives (i) a Joint Written Direction or (ii) a Final Order
directing distribution of the funds in the Retained Account.
All delivery of funds by the Escrow Agent shall be by wire transfer
to such account as directed by, or as otherwise agreed by, Depositor or
Recipient, as applicable. All disbursements of funds from the Escrow Funds
shall be subject to the claims of Escrow Agent and the Indemnified Parties
(as defined below) pursuant to Section 9 below.
5. Suspension of Performance; Disbursement Into Court. If, at any
time, there shall exist any dispute between Depositor, Recipient or the
Representatives with respect to the holding or disposition of any portion of
the Escrow Funds or any other obligations of Escrow Agent hereunder, or if at
any time Escrow Agent is unable to determine, to Escrow Agent's sole
satisfaction, the proper disposition of any portion of the Escrow Funds or
Escrow Agent's proper actions with respect to its obligations hereunder, or
if the Representatives have not within 30 days of the furnishing by Escrow
Agent of a notice of resignation pursuant to Section 7 hereof, appointed a
successor Escrow Agent to act hereunder, then Escrow Agent may, in its sole
discretion, take either or both of the following actions:
a. suspend the performance of any of its obligations
(including without limitation any disbursement obligations) under
this Escrow Agreement until such dispute or uncertainty shall be
resolved to the sole satisfaction of Escrow Agent or until a
successor Escrow Agent shall have been appointed (as the case may
be); provided however, that Escrow Agent shall continue to invest
the Escrow Funds in accordance with Section 6 hereof; and/or
b. petition (by means of an interpleader action or any
other appropriate method) any court of competent jurisdiction in any
venue convenient to Escrow Agent, for instructions with respect to
such dispute or uncertainty, and to the extent required by law, pay
into such court, for holding and disposition in accordance with the
instructions of such court, all funds held by it in the Escrow
Funds, after deduction and payment to Escrow Agent of all fees and
expenses (including court costs and attorneys' fees) payable to,
incurred by, or expected to be incurred by Escrow Agent in
connection with the performance of its duties and the exercise of
its rights hereunder.
Escrow Agent shall have no liability to Depositor, Recipient, their
respective shareholders or any other person with respect to any such
suspension of performance or disbursement into court, specifically including
any liability or claimed liability that may arise, or be alleged to have
arisen, out of or as a result of any delay in the disbursement of funds held
in the Escrow Funds or any delay in or with respect to any other action
required or requested of Escrow Agent.
6. Investment of Funds. Escrow Agent shall invest and reinvest the
funds held in the Escrow Funds as the Depositor and Recipient jointly shall
direct (subject to applicable minimum investment requirements) by the
furnishing of a Joint Written Direction; provided, however, that no
investment or reinvestment may be made except in the following:
a. direct obligations of the United States of America or
obligations the principal of and the interest on which are
unconditionally guaranteed by the United States of America;
b. certificates of deposit issued by any bank, bank and trust
company, or national banking association (including Escrow Agent and
its affiliates), which certificates of deposit are insured by the
Federal Deposit Insurance Corporation or a similar governmental
agency;
c. repurchase agreements with any bank, trust company, or
national banking association (including Escrow Agent and its
affiliates); or
d. any money market fund substantially all of which is
invested in the foregoing investment categories, including any money
market fund managed by Escrow Agent and any of its affiliates.
e. Notwithstanding the foregoing, the Escrow Funds shall
initially be deposited in, and shall remain deposited in until
Escrow Agent receives a Joint Written Direction regarding the
investment of the Escrow Funds, the Evergreen Institutional U.S.
Money Market Fund #836, which is managed by Escrow Agent.
If Escrow Agent has not received a Joint Written Direction at any
time that an investment decision must be made, Escrow Agent shall invest the
Escrow Funds, or such portion thereof as to which no Joint Written Direction
has been received, in investments described in clause (e) above. Each of the
foregoing investments shall be made in the name of Escrow Agent. No
investment shall be made in any instrument or security that has a maturity of
greater than six (6) months. Notwithstanding anything to the contrary
contained herein, Escrow Agent may, without notice to the Representatives,
sell or liquidate any of the foregoing investments at any time if the
proceeds thereof are required for any release of funds permitted or required
hereunder, and Escrow Agent shall not be liable or responsible for any loss,
cost or penalty resulting from any such sale or liquidation. With respect to
any funds received by Escrow Agent for deposit into the Escrow Funds or any
Joint Written Direction received by Escrow Agent with respect to investment
of any funds in the Escrow Funds after ten o'clock, a.m., Charlotte, North
Carolina, time, Escrow Agent shall not be required to invest such funds or to
effect such investment instruction until the next day upon which banks in
Charlotte, North Carolina are open for business.
7. Resignation and Removal of Escrow Agent. Escrow Agent may resign
from the performance of its duties hereunder at any time by giving ten (10)
days' prior written notice to the Representatives or may be removed, with or
without cause, by the Representatives, acting jointly by furnishing a Joint
Written Direction to Escrow Agent, at any time by the giving of ten (10)
days' prior written notice to Escrow Agent. Such resignation or removal shall
take effect upon the appointment of a successor Escrow Agent as provided
hereinbelow. Upon any such notice of resignation or removal, the
Representatives jointly shall appoint a successor Escrow Agent hereunder,
which shall be a commercial bank, trust company or other financial
institution with a combined capital and surplus in excess of $100,000,000.
Upon the acceptance in writing of any appointment as Escrow Agent hereunder
by a successor Escrow Agent, such successor Escrow Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be
discharged from its duties and obligations under this Escrow Agreement, but
shall not be discharged from any liability for actions taken as Escrow Agent
hereunder prior to such succession. After any retiring Escrow Agent's
resignation or removal, the provisions of this Escrow Agreement shall inure
to its benefit as to any actions taken or omitted to be taken by it while it
was Escrow Agent under this Escrow Agreement. The retiring Escrow Agent shall
transmit all records pertaining to the Escrow Funds and shall pay all funds
held by it in the Escrow Funds to the successor Escrow Agent, after making
copies of such records as the retiring Escrow Agent deems advisable and after
deduction and payment to the retiring Escrow Agent of all fees and expenses
(including court costs and attorneys' fees) payable to, incurred by, or
expected to be incurred by the retiring Escrow Agent in connection with the
performance of its duties and the exercise of its rights hereunder.
8. Liability of Escrow Agent.
a. Escrow Agent shall have no liability or obligation with respect
to the Escrow Funds except for Escrow Agent's willful misconduct or gross
negligence. Escrow Agent's sole responsibility shall be for the safekeeping,
investment, and disbursement of the Escrow Funds in accordance with the terms
of this Escrow Agreement. Escrow Agent shall have no implied duties or
obligations and shall not be charged with knowledge or notice of any fact or
circumstance not specifically set forth herein. Escrow Agent may rely upon
any instrument, not only as to its due execution, validity and effectiveness,
but also as to the truth and accuracy of any information contained therein,
which Escrow Agent shall in good faith believe to be genuine, to have been
signed or presented by the person or parties purporting to sign the same and
to conform to the provisions of this Escrow Agreement. In no event shall
Escrow Agent be liable for incidental, indirect, special, consequential or
punitive damages. Escrow Agent shall not be obligated to take any legal
action or commence any proceeding in connection with the Escrow Funds, any
account in which Escrow Funds are deposited, this Escrow Agreement or the
Underlying Agreement, or to appear in, prosecute or defend any such legal
action or proceeding. Escrow Agent may consult legal counsel selected by it
in the event of any dispute or question as to the construction of any of the
provisions hereof or of any other agreement or of its duties hereunder, or
relating to any dispute involving any party hereto, and shall incur no
liability and shall be fully indemnified from any liability whatsoever in
acting in accordance with the opinion or instruction of such counsel.
Depositor and Recipient, jointly and severally, shall promptly pay, upon
demand, the reasonable fees and expenses of any such counsel.
b. The Escrow Agent is authorized, in its sole discretion, to
comply with orders issued or process entered by any court with respect to
the Escrow Funds, without determination by the Escrow Agent of such court's
jurisdiction in the matter. If any portion of the Escrow Funds is at any time
attached, garnished or levied upon under any court order, or in case the
payment, assignment, transfer, conveyance or delivery of any such property
shall be stayed or enjoined by any court order, or in case any order,
judgment or decree shall be made or entered by any court affecting such
property or any part thereof, then and in any such event, the Escrow Agent is
authorized, in its sole discretion, to rely upon and comply with any such
order, writ, judgment or decree which it is advised by legal counsel selected
by it is binding upon it without the need for appeal or other action; and if
the Escrow Agent complies with any such order, writ, judgment or decree, it
shall not be liable to any of the parties hereto or to any other person or
entity by reason of such compliance even though such order, writ, judgment or
decree may be subsequently reversed, modified, annulled, set aside or
vacated.
9. Indemnification of Escrow Agent. From and at all times after the
date of this Escrow Agreement, Depositor and Recipient, jointly and
severally, shall, to the fullest extent permitted by law and to the extent
provided herein, indemnify and hold harmless Escrow Agent and each director,
officer, employee, attorney, agent and affiliate of Escrow Agent
(collectively, the "Indemnified Parties") against any and all actions, claims
(whether or not valid), losses, damages, liabilities, costs and expenses of
any kind or nature whatsoever (including without limitation reasonable
attorneys' fees, costs and expenses) incurred by or asserted against any of
the Indemnified Parties from and after the date hereof, whether direct,
indirect or consequential, as a result of or arising from or in any way
relating to any claim, demand, suit, action or proceeding (including any
inquiry or investigation) by any person, including without limitation
Depositor or Recipient, whether threatened or initiated, asserting a claim
for any legal or equitable remedy against any person under any statute or
regulation, including, but not limited to, any federal or state securities
laws, or under any common law or equitable cause or otherwise, arising from
or in connection with the negotiation, preparation, execution, performance or
failure of performance of this Escrow Agreement or any transactions
contemplated herein, whether or not any such Indemnified Party is a party to
any such action, proceeding, suit or the target of any such inquiry or
investigation; provided, however, that no Indemnified Party shall have the
right to be indemnified hereunder for any liability finally determined by a
court of competent jurisdiction, subject to no further appeal, to have
resulted solely from the gross negligence or willful misconduct of such
Indemnified Party. If any such action or claim shall be brought or asserted
against any Indemnified Party, such Indemnified Party shall promptly notify
Depositor and Recipient in writing, and Depositor and Recipient shall assume
the defense thereof, including the employment of counsel and the payment of
all expenses. Such Indemnified Party shall, in its sole discretion, have the
right to employ separate counsel (who may be selected by such Indemnified
Party in its sole discretion) in any such action and to participate in the
defense thereof, and the fees and expenses of such counsel shall be paid by
such Indemnified Party, except that Depositor and/or Recipient shall be
required to pay such fees and expenses if (a) Depositor and/or Recipient
agree to pay such fees and expenses, or (b) Depositor and/or Recipient shall
fail to assume the defense of such action or proceeding or shall fail, in the
sole discretion of such Indemnified Party, to employ counsel satisfactory to
the Indemnified Party in any such action or proceeding, (c) Depositor or
Recipient is the plaintiff in any such action or proceeding or (d) the named
or potential parties to any such action or proceeding (including any
potentially impleaded parties) include both Indemnified Party and Recipient
and/or Depositor, and Indemnified Party shall have been advised by counsel
that there may be one or more legal defenses available to it which are
different from or additional to those available to Recipient or Depositor.
Depositor and Recipient shall be jointly and severally liable to pay fees and
expenses of counsel pursuant to the preceding sentence, except that any
obligation to pay under clause (a) shall apply only to the party so agreeing.
All such fees and expenses payable by Recipient and/or Depositor pursuant to
the foregoing sentence shall be paid from time to time as incurred, both in
advance of and after the final disposition of such action or claim. All of
the foregoing losses, damages, costs and expenses of the Indemnified Parties
shall be payable by Depositor and Recipient, jointly and severally, upon
demand by such Indemnified Party. The obligations of Depositor and Recipient
under this Section 9 shall survive any termination of this Escrow Agreement,
and the resignation or removal of Escrow Agent shall be independent of any
obligation of the Escrow Agent.
The parties agree that neither the payment by Depositor or Recipient
of any claim by Escrow Agent for indemnification hereunder nor the
disbursement of any amounts to Escrow Agent from the Escrow Funds in respect
of a claim by Escrow Agent for indemnification shall impair, limit, modify,
or affect, as between Depositor and Recipient, the respective rights and
obligations of Depositor, on the one hand, and Recipient, on the other hand,
under the Underlying Agreement.
10. Fees and Expenses of Escrow Agent. Depositor shall compensate
Escrow Agent for its services hereunder in accordance with Schedule A
attached hereto and, in addition, shall reimburse Escrow Agent for all of its
reasonable out-of-pocket expenses, including attorneys' fees, travel
expenses, telephone and facsimile transmission costs, postage (including
express mail and overnight delivery charges), copying charges and the like.
All of the compensation and reimbursement obligations set forth in this
Section 10 shall be payable by Depositor, upon demand by Escrow Agent. The
obligations of Depositor under this Section 10 shall survive any termination
of this Escrow Agreement and the resignation or removal of Escrow Agent.
Escrow Agent is authorized to, and may, disburse to itself from the
Escrow Funds, from time to time, the amount of any compensation and
reimbursement of out-of-pocket expenses due and payable hereunder (including
any amount to which Escrow Agent or any Indemnified Party is entitled to seek
indemnification pursuant to Section 9 hereof.) Escrow Agent shall notify the
Representatives of any disbursement from the Escrow Funds to itself or any
Indemnified Party in respect of any compensation or reimbursement hereunder
and shall furnish to the Representatives copies of all related invoices and
other statements. Recipient, Depositor and the Representatives hereby grant
to Escrow Agent and the Indemnified Parties a security interest in and lien
upon the Escrow Funds and all funds therein to secure all obligations
hereunder to Escrow Agent and the Indemnified Parties, and Escrow Agent and
Indemnified Parties shall have the right to offset the amount of any
compensation or reimbursement due any of them hereunder (including any claim
for indemnification pursuant to Section 9 hereof) against the Escrow Funds.
If for any reason funds in the Escrow Funds are insufficient to cover such
compensation and reimbursement, Depositor and Recipient shall promptly pay
such amounts to Escrow Agent or any Indemnified Party upon receipt of an
itemized invoice.
11. Representations and Warranties.
a. Depositor makes the following representations and warranties to
Escrow Agent:
(i) Depositor is a corporation duly organized, validly existing,
and in good standing under the laws of the State of New York, and
has full power and authority to execute and deliver this Escrow
Agreement and to perform its obligations hereunder;
(ii) This Escrow Agreement has been duly approved by all
necessary corporate action of Depositor, including any necessary
shareholder approval, has been executed by duly authorized
officers of Depositor, and constitutes a valid and binding
agreement of Depositor, enforceable in accordance with its terms.
(iii) The execution, delivery, and performance by Depositor of
this Escrow Agreement is in accordance with the Underlying
Agreement and will not violate, conflict with, or cause a default
under the articles of incorporation or bylaws of Depositor, any
applicable law or regulation, any court order or administrative
ruling or decree to which Depositor is a party or any of its
property is subject, or any agreement, contract, indenture, or
other binding arrangement, including without limitation the
Underlying Agreement, to which Depositor is a party or any of its
property is subject.
(iv) The Depositor Representatives named in Section 1.1 have been
duly appointed to act as the representative of Depositor
hereunder and has full power and authority to execute, deliver,
and perform this Escrow Agreement, to execute and deliver any
Joint Written Direction, to amend, modify or waive any provision
of this Agreement and to take any and all other actions as the
Depositor Representative under this Agreement, all without
further consent or direction from, or notice to, Depositor or any
other party.
(v) No party other than the parties hereto have, or shall have,
any lien, claim or security interest in the Escrow Funds or any
part thereof. No financing statement under the Uniform Commercial
Code is on file in any jurisdiction claiming a security interest
in or describing (whether specifically or generally) the Escrow
Funds or any part thereof.
(vi) All of the representations and warranties of Depositor
contained herein are true and complete as of the date hereof and
will be true and complete at the time of any disbursement from
the Escrow Funds.
b. Recipient makes the following representations and warranties to
Escrow Agent:
(i) Recipient is a corporation/partnership duly organized,
validly existing, and in good standing under the laws of the
State of Delaware and has full power and authority to execute and
deliver this Escrow Agreement and to perform its obligations
hereunder;
(ii) This Escrow Agreement has been duly approved by all
necessary corporate action of Recipient, including any necessary
shareholder approval, has been executed by duly authorized
officers of Recipient, and constitutes a valid and binding
agreement of Recipient, enforceable in accordance with its terms.
(iii) The execution, delivery, and performance by Recipient of
this Escrow Agreement is in accordance with the Underlying
Agreement and will not violate, conflict with, or cause a default
under the articles of incorporation or bylaws of Recipient, any
applicable law or regulation, any court order or administrative
ruling or decree to which Recipient is a party or any of its
property is subject, or any agreement, contract, indenture, or
other binding arrangement, including without limitation the
Underlying Agreement, to which Recipient is a party or any of its
property is subject.
(iv) The Recipient Representatives named in Section 1.5 have been
duly appointed to act as the representative of Recipient
hereunder and has full power and authority to execute, deliver,
and perform this Escrow Agreement, to execute and deliver any
Joint Written Direction, to amend, modify or waive any provision
of this Agreement and to take any and all other actions as the
Recipient Representative under this Agreement, all without
further consent or direction from, or notice to, Recipient or any
other party.
(v) No party other than the parties hereto have, or shall have,
any lien, claim or security interest in the Escrow Funds or any
part thereof. No financing statement under the Uniform Commercial
Code is on file in any jurisdiction claiming a security interest
in or describing (whether specifically or generally) the Escrow
Funds or any part thereof.
(vi) All of the representations and warranties of Recipient
contained herein are true and complete as of the date hereof and
will be true and complete at the time of any disbursement from
the Escrow Funds.
12. Consent to Jurisdiction and Venue. In the event that any party
hereto commences a lawsuit or other proceeding relating to or arising from
this Agreement, the parties hereto agree that the Eastern District of
Pennsylvania shall have the sole and exclusive jurisdiction over any such
proceeding. If there exists no basis for federal jurisdiction, the parties
agree that the Court of Common Pleas, Philadelphia County, Commonwealth of
Pennsylvania shall have the sole and exclusive jurisdiction over any such
proceeding. Any of these courts shall be proper venue for any such lawsuit or
judicial proceeding and the parties hereto waive any objection to such venue.
The parties hereto consent to and agree to submit to the jurisdiction of any
of the courts specified herein and agree to accept service or process to vest
personal jurisdiction over them in any of these courts.
13. Notice. All notices and other communications hereunder shall be
in writing and shall be deemed to have been validly served, given or
delivered five (5) days after deposit in the United States mails, by
certified mail with return receipt requested and postage prepaid, when
delivered personally, one (1) day after delivery to any overnight courier, or
when transmitted by facsimile transmission facilities, and addressed to the
party to be notified as follows:
If to Depositor at: CBNY Investment Services Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ATTENTION: Xxxxxxxx Xxxxxxx, Esquire
Facsimile Number: (until 11/11/01) 000-000-0000
(after 11/11/01) 000-000-0000
If to the Depositor
Representative at: c/o CBNY Investment Services Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ATTENTION: Xxxxxxxx Xxxxxxx or Xxxx Xxxxxxxx
Facsimile Number: (until 11/11/01) 000-000-0000
(after 11/11/01) 000-000-0000
If to Recipient at: SunGard Financial Systems Inc.
00 Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
ATTENTION: President
Facsimile Number: 000-000-0000
with a copy to: SunGard Data Systems Inc.
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
ATTENTION: General Counsel
Facsimile Number: 000-000-0000
If to the Recipient
Representative at: c/o SunGard Financial Systems Inc.
00 Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
ATTENTION: Xxxxxxx Xxxxxxxxxx, Xxxxxx Xxxxxx
and Xxxxx Xxxxxx
Facsimile Number: 000-000-0000
with a copy to: SunGard Data Systems Inc.
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
ATTENTION: General Counsel
Facsimile Number: 000-000-0000
If to the Escrow
Agent at: First Union National Bank, as Escrow Agent
000 Xxxxx Xxxxx Xxxxxx, XX-0000
Corporate Trust Administration, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
ATTENTION: Xxxxx Xxxxxxxx
Facsimile Number: (000) 000-0000
or to such other address as each party may designate for itself by like notice.
14. Amendment or Waiver. This Escrow Agreement may be changed,
waived, discharged or terminated only by a writing signed by the
Representatives and Escrow Agent. No delay or omission by any party in
exercising any right with respect hereto shall operate as a waiver. A waiver
on any one occasion shall not be construed as a bar to, or waiver of, any
right or remedy on any future occasion.
15. Severability. To the extent any provision of this Escrow
Agreement is prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Escrow Agreement.
16. Governing Law. This Escrow Agreement shall be construed and
interpreted in accordance with the internal laws of the Commonwealth of
Pennsylvania without giving effect to the conflict of laws principles
thereof.
17. Entire Agreement. This Escrow Agreement constitutes the entire
agreement between the parties relating to the holding, investment and
disbursement of the Escrow Funds and sets forth in their entirety the
obligations and duties of Escrow Agent with respect to the Escrow Funds.
18. Binding Effect. All of the terms of this Escrow Agreement, as
amended from time to time, shall be binding upon, inure to the benefit of and
be enforceable by the respective heirs, successors and assigns of Depositor,
Recipient, the Representatives and Escrow Agent.
19. Execution in Counterparts. This Escrow Agreement and any Joint
Written Direction may be executed in two or more counterparts, which when so
executed shall constitute one and the same agreement or direction.
20. Termination. Upon the first to occur of the disbursement of all
amounts in the Escrow Funds pursuant to Joint Written Directions or the
disbursement of all amounts in the Escrow Funds into court pursuant to
Section 5 hereof, this Escrow Agreement shall terminate and Escrow Agent
shall have no further obligation or liability whatsoever with respect to this
Escrow Agreement or the Escrow Funds.
21. Dealings. The Escrow Agent and any stockholder, director,
officer or employee of the Escrow Agent may buy, sell, and deal in any of the
securities of the Depositor or Recipient and become pecuniarily interested in
any transaction in which the Depositor or Recipient may be interested, and
contract and lend money to the Depositor or Recipient and otherwise act as
fully and freely as though it were not Escrow Agent under this Agreement.
Nothing herein shall preclude the Escrow Agent from acting in any other
capacity for the Depositor or Recipient or for any other entity.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed under seal as of the date first above written.
Depositor
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------
Title: 1st Vice President
Depositor Representative
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------
Xxxxxxxx Xxxxxxx
By: /s/ Xxxx Xxxxxxxxx Xxxxxxxx
---------------------------
Xxxx Xxxxxxxx
Recipient
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------
Xxxxxxx Xxxxxxxxxx
Title: President, Brokerage Systems
Division
Recipient Representatives
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------
Xxxxxxx Xxxxxxxxxx
By: /s/ Xxxxxx Xxxxxx
---------------------------
Xxxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxx
---------------------------
Xxxxx Xxxxxx
FIRST UNION NATIONAL BANK,
as Escrow Agent
By: /s/ Xxxxx X. Xxxxx
---------------------------
Title: Asst Vice President
Xxxxx X. Xxxxx
SCHEDULE A
Fees Payable to Escrow Agent
I. Initial Fee $1,000
II. Annual Administration Fee $2,500
Escrow Funds will be automatically invested into the Evergreen Institutional
U.S. Government Money Market Fund #836.
