BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT
DESIGNATED BY THE ESCROW AGENT.
THE PARTIES AGREE THAT THE ESCROWED FUNDS WILL
BE HELD IN ESCROW FOR A PERIOD OF 90 DAYS FOLLOWING THE CLOSING AND SHALL BE
USED BY HOTROCKET TO PAY WHEN DUE UNDISCLOSED LIABILITIES.
FOR PURPOSES OF THIS
SECTION 3.6, "UNDISCLOSED LIABILITIES" SHALL MEAN ANY AND ALL LIABILITIES (OTHER
THAN LIABILITIES OWED TO TRAFFIX OR NEWCO) OF DETERMINATE MONETARY AMOUNTS OWING
BY HOTROCKET AFTER THE CLOSING DATE THAT ARE NOT DISCLOSED TO TRAFFIX AND NEWCO
IN THIS AGREEMENT OR THE DELIVERED FINANCIAL STATEMENTS.
ANY PARTY HERETO THAT
RECEIVES NOTICE OF, OR OTHERWISE BECOMES AWARE OF, ANY UNDISCLOSED LIABILITY
SHALL PROVIDE TO THE OTHER PARTIES HERETO PROMPT WRITTEN NOTICE OF SUCH
LIABILITY AND, IF KNOWN TO SUCH PARTY, A DESCRIPTION OF THE CLAIM FROM WHICH
SUCH LIABILITY ARISES.
(B)
UPON RECEIVING NOTICE OF, OR OTHERWISE
BECOMING AWARE OF, ANY UNDISCLOSED LIABILITY, HOTROCKET SHALL TAKE PROMPT ACTION
TO DISPOSE OF THE CLAIM OR CLAIMS FROM WHICH SUCH LIABILITY ARISES.
ANY PAYMENT
OF AN UNDISCLOSED LIABILITY FROM THE ESCROWED FUNDS SHALL BE MADE IN ACCORDANCE
WITH THE TERMS OF THE ESCROW AGREEMENT.
IF AT ANY TIME TRAFFIX BECOMES LIABLE
FOR ANY UNDISCLOSED LIABILITY (DUE TO TRANSFEREE LIABILITY OR OTHERWISE) OR
DETERMINES IN ITS REASONABLE DISCRETION THAT HOTROCKET IS NOT TAKING PROMPT
ACTION IN RESPECT OF ANY UNDISCLOSED LIABILITY AND THAT NEWCO'S AND TRAFFIX'S
INTERESTS WOULD BE BEST SERVED BY HAVING SUCH LIABILITY PAID PROMPTLY, TRAFFIX
SHALL HAVE THE RIGHT TO REQUEST THAT SUCH LIABILITY BE PAID FROM THE ESCROWED
FUNDS.
(C)
NOTWITHSTANDING ANY PROVISION HEREIN TO THE
CONTRARY, IF AT THE EXPIRATION OF THE AFOREMENTIONED 90-DAY PERIOD THERE ARE ANY
UNDISCLOSED LIABILITIES THAT ARE THE SUBJECT OF WRITTEN NOTICES DELIVERED
PURSUANT TO THIS SECTION 3.6 AND THAT REMAIN OUTSTANDING, A
18
PORTION OF THE ESCROWED FUNDS SUFFICIENT TO PAY SUCH LIABILITIES IN FULL SHALL
CONTINUE TO BE HELD IN ESCROW UNTIL THE CLAIM OR CLAIMS FROM WHICH SUCH
LIABILITIES ARISE HAVE BEEN RESOLVED AND SUCH LIABILITIES ARE EXTINGUISHED.
ANY
ESCROWED FUNDS IN EXCESS OF SUCH PORTION SHALL BE DISBURSED TO HOT ROCKET IN
ACCORDANCE WITH THE ESCROW AGREEMENT.
NOTWITHSTANDING ANY PROVISION IN THIS
AGREEMENT OR THE ESCROW AGREEMENT TO THE CONTRARY, HOTROCKET'S LIABILITY TO
INDEMNIFY TRAFFIX AND PURCHASER FROM UNDISCLOSED LIABILITIES SHALL NOT BE
LIMITED TO THE ESCROWED FUNDS.
THE ESCROW AGENT SHALL HOLD THE ESCROW AMOUNT IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THAT CERTAIN ESCROW AGREEMENT
ATTACHED HERETO AS SCHEDULE 3.6.
4.
THE CLOSING.
4.1
Closing.
(A)
THE CLOSING IS ANTICIPATED TO TAKE PLACE
SIMULTANEOUSLY WITH THE EXECUTION HEREOF AT THE OFFICES OF TRAFFIX'S COUNSEL,
FEDER, KASZOVITZ, ISAACSON, WEBER, SKALA, BASS & RHINE LLP, 750 LEXINGTON
AVENUE, NEW YORK, NEW YORK 10022-1200, OR AT SUCH OTHER PLACE AS THE PARTIES
HERETO MAY AGREE.
4.2
Deliveries by Seller at Closing.
At the Closing, Seller shall deliver, or cause to be delivered, to Traffix and
NEWCO:
(1)
A CERTIFICATE ISSUED BY THE SECRETARY OF
STATE OF THE