PARTY OR
PARTIES AND, IF THE DUTIES OR RIGHTS OF THE AGENT ARE AFFECTED, UNLESS IT SHALL
GIVE ITS PRIOR WRITTEN CONSENT THERETO. IN THE EVENT OF ANY CONTROVERSY OR
DISPUTE ARISING HEREUNDER OR WITH RESPECT TO THE CONSTRUCTION HEREOF OR ANY
ACTION TO BE TAKEN BY THE AGENT HEREUNDER, THE AGENT SHALL INCUR NO LIABILITY
FOR ANY ACTION OR OMISSION TO ACT BY IT UNDERTAKEN IN GOOD FAITH. BUYER AND
SELLER SHALL JOINTLY AND SEVERALLY INDEMNIFY AND HOLD THE AGENT HARMLESS FROM
AND AGAINST ALL JUDGMENTS, COSTS, CLAIMS, LOSSES, LIABILITY AND EXPENSES,
INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS,
INCURRED IN CONNECTION WITH THE PERFORMANCE OF THE AGENT'S DUTIES HEREUNDER OR
RESULTING FROM ANY DISPUTE OR LITIGATION ARISING OUT OF OR CONCERNING THE
AGENT'S SERVICES HEREUNDER, EXCEPT FOR THOSE RESULTING FROM THE AGENT'S
NEGLIGENCE OR WILLFUL MISCONDUCT. THE AGENT MAY ACT OR REFRAIN FROM ACTION IN
RESPECT OF ANY MATTER REFERRED TO HEREIN IN FULL RELIANCE UPON AND WITH THE
ADVICE OF COUNSEL AND SHALL BE FULLY PROTECTED IN SO ACTING OR REFRAINING FROM
ACTION UPON THE ADVICE OF SUCH COUNSEL.
CONFLICTS. SELLER ACKNOWLEDGES THAT A POTENTIAL CONFLICT EXISTS BETWEEN HSBC
BANK USA'S ROLE AS AGENT AND IN ITS INDIVIDUAL CAPACITY UNDER THIS AGREEMENT.
SELLER AGREES THAT WHEN ISSUES ARISE IN CONNECTION WITH THE COLLATERAL FUNDS,
BUYER MAY EXERCISE ALL OF ITS RIGHTS UNDER THIS AGREEMENT AND THE PURCHASE
AGREEMENT AVAILABLE TO IT AS A PARTY THERETO AND AS THOUGH IT WERE NOT THE
AGENT,
8
NOTWITHSTANDING THAT SUCH ACTIONS MAY BE CONTRARY TO THE BEST INTERESTS OF
SELLER UNDER THIS AGREEMENT. NOTWITHSTANDING THE POTENTIAL CONFLICT, SELLER HAS
REQUESTED HSBC BANK USA TO ACT AS AGENT AND HAS APPOINTED HSBC BANK USA TO SO
ACT.
TERMINATION. THIS AGREEMENT AND ALL DUTIES AND OBLIGATIONS OF THE AGENT
HEREUNDER SHALL BE TERMINATED UPON THE EARLIER TO OCCUR OF (I) SUCH TIME, IF
ANY, THAT (A) THERE ARE NO FUNDS ON DEPOSIT IN THE COLLATERAL ACCOUNT, AND (B)
THE MAXIMUM REMAINING LIABILITY OF AGC UNDER THE GUARANTY EQUALS OR EXCEEDS THE
SUM OF (X) THE MAXIMUM AGGREGATE AMOUNT OF SUPPLEMENTAL PAYMENTS THAT BUYER IS
THEN AND MAY THEREAFTER BE ENTITLED TO RECEIVE PURSUANT TO SECTION 2.3(D) OF THE
STOCK PURCHASE AGREEMENT, AND (Y) THE THEN OUTSTANDING PRINCIPAL AMOUNT OF THE
ASHANTI NOTE, (II) THE RELEASE FROM THE COLLATERAL ACCOUNT OF ALL COLLATERAL
FUNDS PURSUANT TO SECTION 3(D)(III) OR 3(D)(IV) OF THIS AGREEMENT, AND (III) THE
WRITTEN AGREEMENT OF THE PARTIES HERETO.
MISCELLANEOUS.
Expenses. Except as set forth in Section 7, all expenses of the preparation,
execution and consummation of this Agreement and of the transactions
contemplated hereby, including, without limitation, attorneys', accountants' and
outside advisors' fees and disbursements, shall be borne by the party incurring
such expense.
Tax Matters. Seller shall provide Agent with its taxpayer identification number
documented by an appropriate Form W-8 or Form W-9 upon execution of this
Agreement. Any payments of income shall be subject to applicable withholding
regulations then in force in the United States