OR
WILLFUL MISCONDUCT.
THE ESCROW AGENT SHALL OWE A DUTY ONLY TO THE PURCHASER AND
THE COMPANY UNDER THIS AGREEMENT AND TO NO OTHER PERSON.
(C)
THE PURCHASER 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 $2,000.
(D)
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 PURCHASER AND THE COMPANY.
PRIOR TO THE EFFECTIVE DATE OF RESIGNATION AS
SPECIFIED IN SUCH NOTICE, THE PURCHASER 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 PURCHASER AND THE COMPANY.
IF NO SUCCESSOR ESCROW AGENT IS NAMED BY THE PURCHASER 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.
5
(E)
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.
(F)
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.
(G)
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.
(H)
THE ESCROW AGENT SHALL BE PERMITTED TO ACT AS COUNSEL FOR
THE PURCHASER 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
BETWEEN THE PURCHASER AND THE COMPANY, WHETHER OR NOT THE ESCROW AGENT IS THEN
HOLDING THE DOCUMENTS AND/OR THE ESCROWED PAYMENT AND CONTINUES TO ACT AS THE
ESCROW AGENT HEREUNDER.
(I)
THE PROVISIONS OF THIS SECTION 4.1 SHALL SURVIVE THE
RESIGNATION OF THE ESCROW AGENT OR THE TERMINATION OF THIS AGREEMENT.
4.2.