COUNSEL AND
OTHER COSTS AND EXPENSES OF DEFENDING ITSELF AGAINST ANY CLAIMS, LOSSES,
LIABILITIES, COSTS, DAMAGES AND EXPENSES ARISING IN ANY MANNER WHATSOEVER OUT
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND/OR ANY TRANSACTION RELATED
IN ANY WAY HERETO, EXCEPT FOR SUCH CLAIMS, LOSSES, LIABILITIES, COSTS, DAMAGES
AND EXPENSES INCURRED BY REASON OF THE ESCROW AGENT'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
THE ESCROW AGENT SHALL OWE A DUTY ONLY TO THE PURCHASERS
AND THE COMPANY UNDER THIS AGREEMENT AND TO NO OTHER PERSON.
THE PURCHASERS AND THE COMPANY SHALL JOINTLY AND SEVERALLY REIMBURSE THE ESCROW
AGENT FOR ITS REASONABLE OUT-OF-POCKET EXPENSES (INCLUDING COUNSEL FEES (WHICH
COUNSEL MAY BE LOEB & LOEB LLP OR SUCH OTHER COUNSEL OF THE ESCROW AGENT'S
CHOOSING) INCURRED IN CONNECTION WITH THE PERFORMANCE OF ITS DUTIES AND
RESPONSIBILITIES HEREUNDER, WHICH SHALL NOT (SUBJECT TO SECTION 4.1(B)) EXCEED
$1,500.
THE ESCROW AGENT MAY AT ANY TIME RESIGN AS ESCROW AGENT HEREUNDER BY GIVING FIVE
(5) BUSINESS DAYS PRIOR WRITTEN NOTICE OF RESIGNATION TO THE PURCHASERS AND THE
COMPANY.
PRIOR TO THE EFFECTIVE DATE OF RESIGNATION AS SPECIFIED IN SUCH
NOTICE, THE PURCHASERS AND COMPANY WILL ISSUE TO THE ESCROW AGENT A JOINT
INSTRUCTION AUTHORIZING DELIVERY OF THE DOCUMENTS AND THE ESCROWED PAYMENT TO A
SUBSTITUTE ESCROW AGENT SELECTED BY THE PURCHASERS AND THE COMPANY.
IF NO
SUCCESSOR ESCROW AGENT IS NAMED BY THE PURCHASERS AND THE COMPANY, THE ESCROW
AGENT MAY APPLY TO A COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK
FOR APPOINTMENT OF A SUCCESSOR ESCROW AGENT, AND DEPOSIT THE DOCUMENTS AND THE
ESCROWED PAYMENT WITH THE CLERK OF ANY SUCH COURT, AND/OR OTHERWISE COMMENCE AN
INTERPLEADER OR SIMILAR ACTION FOR A DETERMINATION OF WHERE TO DEPOSIT THE SAME.
THE ESCROW AGENT DOES NOT HAVE AND WILL NOT HAVE ANY INTEREST IN THE DOCUMENTS
AND THE ESCROWED PAYMENT, BUT IS SERVING ONLY AS ESCROW AGENT, HAVING ONLY
POSSESSION THEREOF.
THE ESCROW AGENT SHALL NOT BE LIABLE FOR ANY ACTION TAKEN OR OMITTED BY IT IN
GOOD FAITH AND REASONABLY BELIEVED BY IT TO BE AUTHORIZED HEREBY OR WITHIN THE
RIGHTS OR POWERS CONFERRED UPON IT HEREUNDER, NOR FOR ACTION TAKEN OR OMITTED BY
IT IN GOOD FAITH, AND IN ACCORDANCE WITH ADVICE OF COUNSEL (WHICH COUNSEL MAY BE
LOEB & LOEB LLP OR SUCH OTHER COUNSEL OF THE ESCROW AGENT'S CHOOSING), AND SHALL
NOT BE LIABLE FOR ANY MISTAKE OF FACT OR ERROR OF JUDGMENT OR FOR ANY ACTS OR
OMISSIONS OF ANY KIND EXCEPT TO THE EXTENT ANY SUCH LIABILITY AROSE FROM ITS OWN
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
THIS AGREEMENT SETS FORTH EXCLUSIVELY THE DUTIES OF THE ESCROW AGENT WITH
RESPECT TO ANY AND ALL MATTERS PERTINENT THERETO AND NO IMPLIED DUTIES OR
OBLIGATIONS SHALL BE READ INTO THIS AGREEMENT.
5
THE ESCROW AGENT SHALL BE PERMITTED TO ACT AS COUNSEL FOR THE CREDITOR PARTIES
OR THE COMPANY, AS THE CASE MAY BE, IN ANY DISPUTE AS TO THE DISPOSITION OF THE
DOCUMENTS AND THE ESCROWED PAYMENT, IN ANY OTHER DISPUTE