(b) Each capitalized term that is used but not defined in this Agreement shall have themeaning given it in the Merger Agreement. Notwithstanding the foregoing, or any contraryprovisions of this Agreement, it is understood that the Escrow Agent is not a party to the MergerAgreement.     2. Establishment of Escrow Account. Parent and the Seller Representative herebyappoint the Escrow Agent as the escrow agent under this Agreement, and the Escrow Agent acceptssuch appointment according to the terms and conditions set forth herein. At the Effective Time,Parent shall deliver the Escrow Deposit to the Escrow Agent by wire transfer. The Escrow Agentshall accept the Escrow Deposit and shall hold, manage, administer, distribute and release theEscrow Funds in accordance with the terms and conditions of this Agreement.     3. Investments. So long as the Escrow Agent is holding the Escrow Funds or InvestmentIncome in the Escrow Account in accordance with this Agreement, it shall hold the Escrow Funds andInvestment Income in United States Dollars and pay interest thereon at the Dreyfus Treasury CashManagement Investor Fund rate. All Investment Income shall be credited to, and become a part ofthe Investment Income in the Escrow Account, and any losses on any such investments shall bedebited to the Escrow Account. The Escrow Agent shall have no duty, responsibility or obligation toinvest any funds or cash held in the Escrow Account other than in accordance with this Section 3.The Escrow Agent shall have no liability or responsibility for any investment losses, including,without limitation, any market loss on any investment liquidated (whether at or prior to maturity)in order to make a payment required under this Agreement. The Escrow Agent may, in making ordisposing of any investment permitted by this Agreement, deal with itself, in its individualcapacity, or any of its affiliates, whether or not it or such affiliate is acting as a subagent ofthe Escrow Agent or for any third person or dealing as principal for its own account.     4. Release of Escrow Funds. Except as otherwise provided in this Agreement, noportion of the Escrow Funds or Investment Income shall be released unless and until any of thefollowing conditions shall have occurred:(a) (i) If any Buyer Indemnified Party delivers a notice to the SellerRepresentative pursuant to Section 10.3 of the Merger Agreement seekingindemnification from the Sellers under Section 10.1 of the Merger Agreement (a“Claim Notice”), Parent will also deliver to the Seller Representative, witha copy to the Escrow Agent, a certificate substantially in the form ofExhibit B attached hereto (a “Certificate of Claim”).     (ii) If the Sellers, acting solely through the Seller Representative, disputethe right of the applicable Indemnified Party to the Claimed Loss (as defined in theCertificate of Claim) referred to in a Certificate of Claim, the SellerRepresentative shall, within 30 days following the Seller Representative’s andEscrow Agent’s receipt of such Certificate of Claim (the “ObjectionPeriod”), deliver to Parent, with a copy to the Escrow Agent, a certificatesubstantially in the form of Exhibit C attached hereto (an “ObjectionCertificate”) disputing the right of the applicable Indemnified Party to theClaimed Loss referred to in such Certificate of Claim. If the Seller Representativedoes not deliver an Objection Certificate within the Objection Period, on the nextBusiness Day following the expiration of the Objection Period, the Escrow Agentshall pay the Claimed Loss referred to in such Certificate of Claim to Parentpursuant to the instructions set forth in the Certificate of Claim out of the EscrowFunds then held in the Indemnity Escrow Sub-Account.
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     (iii) In the event that an Objection Certificate is delivered to the EscrowAgent in accordance with this Agreement, no Indemnity Escrow Funds out of theIndemnity Escrow Sub-Account shall be released by the Escrow Agent except inaccordance with Section 4(a)(iv) or Section 4(c)(iii) of this Agreement.     (iv) If the Escrow Agent shall have received an Objection Certificate from theSeller Representative within  the Objection Period, the Escrow Agent shall releaseto Parent, on the next Business Day following the expiration of the ObjectionPeriod, Escrow Funds from the Indemnity Escrow Sub-Account in an amount equal to anyuncontested portion of the Claimed Loss and shall continue to hold the contestedportion of the Claimed Loss in the Indemnity Escrow Sub-Account until receipt ofeither (A) joint written instructions from Parent and the Seller Representative tothe Escrow Agent (a “Joint Instruction”) or (B) a final order, writ,judgment or decree of a court of competent jurisdiction or arbitrator(s), providedthe Escrow Agent receives a certified copy of such order, writ, judgment or decree,accompanied with a certificate substantially in the form of Exhibit Dattached hereto (a “Final Determination Certificate”) with respect to theamount of the Claimed Loss (if any) owed to any Buyer Indemnified Party. In theevent that the Joint Instruction or Final Determination Certificate provides thatthe amount specified therein should be distributed among the former holders ofMerger Shares (including Restricted Merger Shares) and Company Options, the SellerRepresentative shall, on behalf of the former holders of Merger Shares (includingRestricted Merger Shares) and Company Options, deliver instructions to the EscrowAgent which shall set forth the allocated amounts, recipients and deliveryinstructions (the “Disbursement Instruction”) with respect to the amount tobe distributed by the Escrow Agent among the former holders of Merger Shares(including Restricted Merger Shares) and Company Options pursuant to a scheduleattached thereto. The Escrow Agent shall act on a Joint Instruction or a FinalDetermination Certificate, accompanied by a Disbursement Instruction, if applicable,without further inquiry or delay, on the next Business Day after receipt of suchJoint Instruction or Final Determination Certificate and Disbursement Instruction,if applicable.          (b) Within 5 Business Days after the Final Settlement Date, in accordance with Section 2.1(e)of the Merger Agreement, (x) if there is an Excess Payment, Parent and the Seller Representativeshall deliver a Joint Instruction to the Escrow Agent directing the Escrow Agent to release all ofthe Escrow Funds then held in the Adjustment Sub-Account and upon receipt of such JointInstruction, the Escrow Agent shall release all of the Escrow Funds then held in the AdjustmentSub-Account and deliver such funds (and any proportion of Investment Income attributable thereto)as specified in the Joint Instruction and (y) if there is a Shortfall Reduction, upon receipt of aJoint Instruction, the Escrow Agent shall release Escrow Funds from the Adjustment Sub-Account anddeliver (i) to Parent (or its designee(s)), the amount equal to the Shortfall Reduction (includingan amount representing interest therein as provided in Section 2.1(e) of the Merger Agreementattributable thereto), and if the amount on deposit in the Adjustment Sub-Account is insufficientto pay the full amount of such Shortfall Reduction, the amount of such shortfall (and anyproportion of Investment Income attributable thereto) shall be released from the Indemnity EscrowSub-Account to the extent of the amount on deposit in the Indemnity Escrow Sub-Account, and (ii) tothe former holders of Merger Shares (including Restricted Merger Shares) and Company Options,pursuant to the Disbursement Instruction provided by the Seller Representative, the amount (if any)remaining on deposit in the Adjustment Sub-Account (and any proportion of Investment Incomeattributable thereto) after the release and delivery of the Shortfall Reduction to Parent (or itsdesignee(s)) in accordance with the Joint Instruction.
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(c) (i) Within 5 Business Days after the First Escrow Release Date, (1) Parent andthe Seller Representative shall deliver a Joint Instruction to the Escrow Agentdirecting the Escrow Agent to release from the funds then held in the IndemnityEscrow Sub-Account an amount equal to (x) $6,175,000 minus (y)  the sum of allamounts previously paid to any Buyer Indemnified Party pursuant to Section 4(a) ofthis Agreement plus the aggregate amount of the Claimed Losses included in allCertificates of Claim submitted before the First Escrow Release Date that have beenneither paid nor otherwise resolved and upon receipt of such Joint Instruction, (2)the Seller Representative shall deliver the Disbursement Instruction to the EscrowAgent and (3) the Escrow Agent shall release to the former holders of Merger Shares(including Restricted Merger Shares) and Company Options, in accordance with theDisbursement Instruction to be delivered by the Seller Representative to the EscrowAgent.     (ii) Within 5 Business Days after the Second Escrow Release Date, (1) Parent andthe Seller Representative shall deliver a Joint Instruction to the Escrow Agentdirecting the Escrow Agent to release from the funds then held in the IndemnityEscrow Sub-Account an amount equal to (x) the remaining balance of such funds minus(y) the aggregate amount of the Claimed Losses included in all Certificates of Claimsubmitted before the Second Escrow Release Date that have been neither paid norotherwise resolved and upon receipt of such Joint Instruction, (2) the SellerRepresentative shall deliver the Disbursement Instruction to the Escrow Agent and(3) the Escrow Agent shall release to the former holders of Merger Shares (includingRestricted Merger Shares) and Company Options, in accordance with the DisbursementInstruction to be delivered by the Seller Representative to the Escrow Agent.     (iii) If any funds remain in the Indemnity Escrow Sub-Account after the releaseprovided for in the preceding clause (ii), within five Business Days after the dateon which any claim set forth in all Certificates of Claim submitted before theSecond Escrow Release Date has been paid or otherwise resolved, the Escrow Agentshall release to the former holders of Merger Shares (including Restricted MergerShares) and Company Options, in accordance with the Disbursement Instruction to bedelivered by the Seller Representative to the Escrow Agent, an amount equal to theexcess (if any) of (x) the balance of the funds remaining in the Indemnity EscrowSub-Account over (y) the aggregate amount of the Claimed Losses included in allCertificates of Claim submitted before the Second Escrow Release Date that have beenneither paid nor otherwise resolved. Prior to each release provided for in thisclause (iii), Parent and the Seller Representative shall deliver a Joint Instructionto the Escrow Agent confirming that the release is required pursuant to thisclause (iii) and the aggregate amount thereof.          (d) For purposes of this Section 4, the Seller Representative agrees that the Escrow Agentshall be entitled to rely on the Disbursement Instructions provided by the Seller Representative tothe Escrow Agent and the Escrow Agent shall have no duty or obligation to verify or confirm theaccuracy, validity or sufficiency of any amounts to be distributed to any former holder of MergerShares (including Restricted Merger Shares) or Company Options prior to making such payments, norshall it have any obligation to determine, calculate or confirm the same. The SellerRepresentative hereby represents and warrants that any Disbursement Instruction will have been dulyauthorized in writing by all of the former holders of Merger Shares (including Restricted MergerShares) and Company Options represented thereby that have been adversely affected with respect toany payment that they would be otherwise entitled to.
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          (e) At any time a Joint Instruction is delivered to the Escrow Agent specifically directingdelivery of all or any portion of the Escrow Funds to Parent (or its designee), such JointInstruction shall set forth the amounts, recipients and delivery instructions with respect to theEscrow Funds to be distributed upon receipt of which the Escrow Agent shall release from therelevant sub-account of the Escrow Account and deliver to Parent (or its designee), as the case maybe, the Escrow Funds in accordance with such Joint Instruction. At any time a Joint Instruction isdelivered to the Escrow Agent specifically directing delivery of all or any portion of the EscrowFunds to the former holders of Merger Shares (including Restricted Merger Shares) and CompanyOptions (including by way of distribution through the Exchange Agent) or the Seller Representative(or their respective designees), such Joint Instruction shall be accompanied by a DisbursementInstruction to be delivered by the Seller Representative, which shall set forth the amounts,recipients and delivery instructions with respect to the Escrow Funds to be distributed uponreceipt of which the Escrow Agent shall release from the relevant sub-account of the Escrow Accountand deliver to the former holders of Merger Shares (including Restricted Merger Shares) and CompanyOptions or Seller Representative (or their respective designees), as the case may be, the EscrowFunds in accordance with such Disbursement Instruction.          (f) On the Business Day immediately following the date on which there are no longer any EscrowFunds in the Escrow Account, the Escrow Agent shall release from, and deliver the then remainingInvestment Income in the Escrow Account, to the former holders of Merger Shares (includingRestricted Merger Shares) and Company Options (or their designee(s)) in accordance with a writteninstruction from the Seller Representative.     5. Compliance With Court Orders. If any property subject to this Agreement shall beat 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 byany court order, or in case any order, writ, judgment or decree shall be made or entered by anycourt affecting such property or any part thereof, then in any of such events the Escrow Agent isauthorized to rely upon and comply with any such order, writ, judgment or decree in any manner itdeems appropriate; and if the Escrow Agent complies with any such order, writ, judgment or decreethat the Escrow Agent is advised by legal counsel of its own choosing (including internal counsel)is binding, the Escrow Agent shall not be liable to any of the parties hereto or to any otherperson, firm or corporation by reason of such compliance even though such order, writ, judgment ordecree may be subsequently reversed, modified, annulled, set aside or vacated. The Escrow Agentshall promptly forward to Parent and the Seller Representative by one of the methods described inSection 11 of this Agreement copies of all legal documents served on or otherwise received by theEscrow Agent relating to any of the proceedings described in this Section 5.     6. Proof of Conditions for Release. Notwithstanding anything to the contrarycontained herein, the Escrow Agent may refuse to release any part of the Escrow Funds or InvestmentIncome under Section 4 of this Agreement unless it has been fully satisfied that each writtennotice referred to in Section 4 of this Agreement contains the genuine signature of a Principal orthe Principals. Nothing herein shall require the Escrow Agent to establish the genuineness of anysignature but, instead, the Escrow Agent may rely upon any signature appearing to be that of aPrincipal as being genuine and/or duly authorized, in the absence of actual knowledge to thecontrary. Notwithstanding anything to the contrary in this Agreement, the Escrow Agent shall actupon receipt of the documents in the forms attached hereto as Exhibits B, C andD and shall have no responsibility for verifying any of the contents thereof.
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     7. Term. This Agreement shall remain in effect until one of the following conditionsoccurs:          (a) the Principals shall have jointly given 10 days advance written notice of the cancellationof the designation of the Escrow Agent to act and serve in such capacity, which notice shallcontain specific directions to the Escrow Agent for delivery of the Escrow Funds, and the EscrowFunds shall have been delivered in accordance with such notice and the Investment Income shall havebeen delivered in accordance with Section 4;          (b) no Escrow Funds or Investment Income remain in the Escrow Account (provided that thepayments (if any) required pursuant to Section 4(f) have been made); or          (c) a court of competent jurisdiction shall have issued a final order or judgment ordering thetermination of this Agreement, and all appeals of such order or judgment shall have been exhaustedor all periods in which to take an appeal shall have expired without an appeal being taken.     8. Succession. (a)  The Escrow Agent (and any successor escrow agent) may at any timeresign upon 30 calendar days advance written notice to the Principals. Upon receipt of a notice ofresignation, the Principals shall use commercially reasonable efforts to appoint a successor escrowagent within the 30 calendar day period following such notice (the “Escrow Agent AppointmentPeriod”). If the Escrow Agent has not received a notice signed by the Principals appointing asuccessor escrow agent and setting forth such successor escrow agent’s name and address prior tothe expiration of the Escrow Agent Appointment Period, the Escrow Agent shall deposit the EscrowFunds and Investment Income into the registry of an appropriate court and request judicialdetermination of the rights between the Principals, by interpleader or other appropriate action,and, upon such deposit and request, the resigning Escrow Agent shall have no further rights orobligations pursuant to this Agreement. The Principals hereby jointly and severally agree toindemnify and hold the Escrow Agent harmless from and against any damages or losses in connectionwith such deposit and request, including, but not limited to attorneys’ fees and court costs at alltrial and appellate levels; provided, however, that the Escrow Agent shall not be entitled to be soindemnified to the extent such damages or losses were proximately caused by its own fraud, grossnegligence or willful misconduct (each as determined by a final, nonappealable order, judgment,decree or ruling of a court of competent jurisdiction).          (b) If the Principals appoint a successor escrow agent as contemplated by Section 8(a) priorto the expiration of the Escrow Agent Appointment Period, the resigning Escrow Agent shall deliver,promptly upon receipt of notice of such appointment, the Escrow Funds and Investment Income to thenewly appointed escrow agent designated by the Principals (or shall otherwise dispose of the EscrowFunds and Investment Income as instructed by the Principals in writing), and the resigning EscrowAgent shall not otherwise have the right to withhold the Escrow Funds and Investment Income fromthe newly appointed escrow agent. A successor escrow agent appointed by the Principals ascontemplated hereby shall have executed and delivered an instrument accepting such appointment andagreeing to the terms of this Agreement as a condition to such appointment and, upon suchappointment, shall, without further acts, be vested with all the estates, properties, rights,powers and duties of the predecessor escrow agent as if originally named Escrow Agent. Uponappointment of the successor escrow agent under this Section 8(b), the resigning Escrow Agent shallhave no further rights or obligations pursuant to this Agreement.     9. Escrow Agent Fees. The Escrow Agent shall be entitled to compensation for servicesprovided during the term of this Agreement in accordance with the fee schedule attached hereto asSchedule A and for reimbursement for all its reasonable out-of-pockets costs and expenses(including, without limitation, reasonable fees and disbursements of counsel) in connection withthe preparation,
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negotiation, amendment, modification, waiver, execution, delivery, performance or enforcementof this Agreement. The cost of the Escrow Agent’s compensation and reimbursement provided forherein shall be the joint and several obligation of each of Parent and the Seller Representative.As between Parent and the Seller Representative, Parent and the Seller Representative agree thatsuch costs shall be divided equally between Parent on the one hand and the Seller Representative onthe other hand. The Escrow Agent shall first withdraw from the Escrow Fund any amount payable bythe Seller Representative hereunder. The obligations contained in this Section 9 shall survive thetermination of this Agreement and the resignation, replacement or removal of the Escrow Agent.     10. Concerning the Escrow Agent. Notwithstanding any provision contained herein tothe contrary, the Escrow Agent including its officers, directors, employees and agents, shall:          (a) be, and hereby is, jointly and severally indemnified and saved harmless by the Principalsfrom all claims, liabilities, judgments, fines, settlements, expenses, demands, costs, penalties,losses, actions, suits or proceedings at law or equity, or any other expenses, fees or charges ofany character or nature, including attorney fees and expenses (collectively, “Losses”), which maybe incurred by it, directly or indirectly, as a result of its acceptance of the Escrow Account orarising from or in any way connected to the performance of its duties hereunder, unless such Lossesshall have been finally adjudicated to have been caused by the bad faith, gross negligence, willfulmisconduct or fraud of the Escrow Agent (each as determined by a final, nonappealable order,judgment, decree or ruling of a court of competent jurisdiction), and such indemnification shallsurvive its resignation or removal, or the termination of this Agreement;          (b) in the event that (i) any dispute shall arise between the parties with respect to thedisposition or disbursement of any of the assets held hereunder or (ii) the Escrow Agent shall beuncertain as to how to proceed in a situation not explicitly addressed by the terms of thisAgreement whether because of conflicting demands by the other parties hereto or otherwise, (A)after seeking the advice of legal counsel, be entitled to refrain from taking any action in thatinstance and its sole obligation, in addition to those of its duties hereunder as to which there isno such uncertainty and which are not impacted by such uncertainty, shall be to keep safely allproperty, if any, held in the Escrow Account until it shall be directed by a Joint Instruction orby a final, nonappealable order of a court of competent jurisdiction or (B) be permitted tointerplead all of the assets held hereunder into a court of competent jurisdiction, and thereafterbe fully relieved from any and all liability or obligation with respect to such interpleadedassets. The parties hereto other than the Escrow Agent further agree to pursue any redress orrecourse in connection with such a dispute, without making the Escrow Agent a party to same;          (c) have only those duties, responsibilities or obligations as are specifically providedherein, which shall be deemed purely ministerial in nature, and shall under no circumstance bedeemed a fiduciary for any of the parties to this Agreement. The Escrow Agent shall neither beresponsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement,instrument or document between the other parties hereto, in connection herewith, including withoutlimitation the Merger Agreement. This Agreement sets forth all matters pertinent to the escrowcontemplated hereunder, and no additional obligations of the Escrow Agent shall be inferred fromthe terms of this Agreement or any other Agreement. Notwithstanding any other provision in thisAgreement (i) the Escrow Agent shall be liable for its willful misconduct or gross negligence (eachas determined by a final nonappealable order, judgment, decree or ruling of a court of competentjurisdiction) and (ii) in no event shall the Escrow Agent be liable for special, punitive,indirect, consequential or incidental loss or damage of any kind whatsoever (including, but notlimited to, lost profits), even if the Escrow Agent has been advised of the likelihood of such lossor damage. Any liability of the Escrow Agent under this Escrow Agreement shall be limited to theamount of fees paid to the Escrow Agent under this Agreement;
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          (d) be fully protected in acting upon and shall incur no liability with respect to any actiontaken, suffered or omitted by it, in reliance upon any notice, direction, instruction, consent,statement or other document (including, but not limited to a settlement agreement) believed by itto be genuine and duly authorized, and shall have no duty to inquire into or investigate thevalidity, accuracy or content of any thereof;          (e) have the right, but not the obligation, to consult with counsel of choice and shall not beliable and shall be fully protected in respect of any action taken or omitted to be taken by EscrowAgent either in accordance with the advice of such counsel or in accordance with any opinion ofcounsel to Seller Representative addressed and delivered to the Escrow Agent;          (f) have the right to perform any of its duties hereunder through its agents, attorneys,custodians or nominees;          (g) not be responsible or liable in any manner for the sufficiency, collection, correctness,genuineness or validity of any revenues, cash, payments, securities, property, funds, investments,income, earnings or other amounts deposited with or held by it or for the identity, authority orrights of any person or entity executing and delivering or purporting to execute or deliver anythereof to the Escrow Agent;          (h) have the right to engage or be interested in any financial or other transaction with theCompany or any party hereto or affiliate thereof, and may act as depositary, trustee or agent for,any committee or body of holders of obligations of such party or affiliate, as freely as if it werenot the Escrow Agent hereunder;          (i) not be obligated to expend or risk its own funds or to take any action which it believeswould expose it to expense or liability or to a risk of incurring expense or liability, unless ithas been furnished with assurances of repayment or indemnity satisfactory to it;          (j) not take instructions or directions except those given in accordance with this EscrowAgreement;          (k) not incur any liability for not performing any act, duty, obligation or responsibility byreason of any occurrence beyond the control of the Escrow Agent (including without limitation anyact or provision of any present or future law or regulation or governmental authority, any act ofGod, war, civil disorder or failure of any means of communication); and          (l) not be called upon to advise any person or entity as to any investments with respect toany security, property or funds in escrow hereunder or the dividends, distributions, income,interest or earnings thereon.     11. Notices. All notices, requests, demands, claims, and other communicationshereunder shall be in writing and shall be deemed to have been duly given if delivered personallyor by guaranteed overnight delivery, facsimile transmission (promptly followed by a hard-copydelivered in accordance with this Section 11) or mailed (first class postage prepaid) to theparties at the following addresses or facsimile numbers (or to such other addresses or facsimilenumbers which such Party shall designate in writing to the other Party):if to Parent to:
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Cogdell Spencer LP