TO THIS AGREEMENT, AND THE
LENDER WILL INDEMNIFY AND HOLD THE ESCROW AGENT HARMLESS FROM ANY CLAIMS MADE
AGAINST THE ESCROW AGENT BY THE BORROWER ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
THE BORROWER AND THE LENDER JOINTLY AND SEVERALLY WILL INDEMNIFY AND
HOLD THE ESCROW AGENT HARMLESS FROM ANY CLAIM MADE BY ANY THIRD PARTY ARISING
OUT OF OR RELATING TO THIS AGREEMENT, SUCH INDEMNIFICATION TO INCLUDE ALL COSTS
AND EXPENSES INCURRED BY THE ESCROW AGENT, INCLUDING REASONABLE ATTORNEYS' FEES.
5.8
THE ESCROW AGENT WILL NOT BE REQUIRED TO
INSTITUTE OR DEFEND ANY ACTION INVOLVING ANY MATTERS REFERRED TO HEREIN OR WHICH
AFFECT IT OR ITS DUTIES OR LIABILITY HEREUNDER, UNLESS OR UNTIL REQUESTED TO DO
SO BY ANY PARTY TO THIS AGREEMENT AND THEN ONLY UPON RECEIVING FULL INDEMNITY,
IN CHARACTER SATISFACTORY TO THE ESCROW AGENT, AGAINST ANY AND ALL CLAIMS,
LIABILITIES AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, IN RELATION
THERETO.
5.9
UPON TERMINATION OF THIS AGREEMENT, THE
ESCROW AGENT MAY REQUEST FROM THE BORROWER AND THE LENDER SUCH ADDITIONAL
ASSURANCES, CERTIFICATES, SATISFACTIONS, RELEASES AND/OR OTHER DOCUMENTS AS IT
MAY DEEM APPROPRIATE TO EVIDENCE THE TERMINATION OF THIS AGREEMENT.
5.10
THE LENDER ACKNOWLEDGES THAT IT IS NECESSARY, FOR
FEDERAL INCOME TAX PURPOSES, FOR THE ESCROW AGENT TO KNOW ITS EMPLOYER
IDENTIFICATION NUMBERS ("EIN").
THE LENDER REPRESENTS THAT ITS EIN IS
54-1953766.
5.11
THE BORROWER AND THE LENDER ACKNOWLEDGE THAT THE
ESCROW AGENT IS MERELY SERVING AS A DEPOSITORY HEREUNDER AND THAT THE ESCROW
AGENT CURRENTLY IS SERVING AND WILL CONTINUE TO SERVE AS COUNSEL FOR THE LENDER
WITH RESPECT TO VARIOUS MATTERS INCLUDING, BUT NOT LIMITED TO, THE LOAN
TRANSACTION.
THE BORROWER AGREES, ON ITS OWN BEHALF AND FOR ANY PARTY
AFFILIATED WITH IT, THAT IT WILL NOT ASSERT THAT A CONFLICT OF INTEREST IS
PRESENTED BY THE ESCROW AGENT SERVING AS LEGAL COUNSEL TO THE LENDER IN ANY
CURRENT OR FUTURE MATTER BECAUSE OF THE ESCROW AGENT'S SERVICE HEREUNDER AND THE
BORROWER AGREES THAT IT WILL NOT ATTEMPT TO DISQUALIFY THE ESCROW AGENT FROM
ACTING AS COUNSEL TO THE LENDER BECAUSE OF ITS SERVICE HEREUNDER.
3
6.
NOTICES.
All notices or other communications required or permitted hereunder will be in
writing and will be deemed given when delivered: (i) personally, (ii) by
registered or certified mail (postage prepaid), (iii) by legible facsimile
transmission or (iv) by overnight courier (fare prepaid), in all cases addressed
as follows:
If to the Borrower, to:
with a copy to:
DPAC Technologies Corp.
Nicholas Yocca, Esq.
7321 Lincoln Corp.
The Yocca Law Firm, LLP
Garden Grove, CA 92841
19900 MacArthur Blvd., Suite #650
Telecopy: (714) 899-7557
Irvine, CA 92612
Telecopy: (949) 253-0870
If to the Lender, to:
with a copy to:
Development Capital Ventures, LP
Richard D. Rose, Esq.
4443 Brookfield Corporate Drive, Suite 110
Buchanan Ingersoll PC
Chantilly, VA 20151
One Oxford Centre
Telecopy: (703) 961-0154
301 Grant Street, 20th Floor
Pittsburgh, PA 15219-1410
Telecopy: (412) 562-1041
If to the Escrow Agent, to:
Thomas G. Buchanan, Esq.
Buchanan Ingersoll