ALL OTHER COSTS, CHARGES AND FEES REFERRED TO ABOVE SHALL BE PAID TO
THE ESCROW AGENT BY SELLER.
(B)
THE ESCROW AGENT SHALL CHARGE ANY OTHER OUT-OF-POCKET EXPENSES,
DISBURSEMENTS AND ADVANCES, INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES,
INCURRED OR MADE BY THE ESCROW AGENT IN CONNECTION WITH THE PERFORMANCE,
MODIFICATION AND TERMINATION OF THIS AGREEMENT, ALL OF WHICH SHALL BE PAID TO
THE ESCROW AGENT BY THE PARTIES PROMPTLY AFTER THEY BECOME DUE.
ONE-HALF OF
SUCH EXPENSES SHALL BE PAID TO THE ESCROW AGENT BY BUYER AND ONE-HALF SHALL OF
SUCH EXPENSES SHALL BE PAID TO THE ESCROW AGENT BY SELLER.
10.
INDEMNITY.
BUYER AND SELLER SHALL SEVERALLY INDEMNIFY, DEFEND AND
HOLD HARMLESS THE ESCROW AGENT AND ITS OFFICERS, DIRECTORS, EMPLOYEES,
REPRESENTATIVES AND AGENTS AGAINST ALL DAMAGES AND LIABILITIES, AND ALL
EXPENSES, DISBURSEMENTS, AND ATTORNEYS' FEES INCURRED IN
8
connection therewith, which it in good faith may incur or suffer in connection
with or arising out of this Agreement or its acceptance of its appointment as
the Escrow Agent, except for such liabilities, damages, expenses, disbursements,
damages and attorneys' fees incurred by reason of the Escrow Agent's own bad
faith, gross negligence or willful misconduct.
11.
TAXES.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO
THE CONTRARY, FOR ALL TAX PURPOSES, SELLER SHALL (A) TREAT ITSELF AS THE OWNER
OF THE ESCROW FUND, (B) REPORT ALL GAIN INCURRED AS A RESULT OF OR ATTRIBUTABLE
TO THE DISBURSEMENT, DISTRIBUTION OR TRANSFER OF ANY ASSETS THAT COMPRISE THE
ESCROW FUND PURSUANT TO THE TERMS OF THIS AGREEMENT AND PAY ALL TAXES
ATTRIBUTABLE THERETO AND (C) REPORT ALL INCOME, IF ANY, THAT IS EARNED ON, OR
DERIVED FROM, THE ESCROW FUND AS ITS INCOME IN THE TAXABLE YEAR OR YEARS IN
WHICH SUCH INCOME MAY PROPERLY BE INCLUDED, AND PAY ALL TAXES ATTRIBUTABLE
THERETO.
12.
REPRESENTATIONS AND WARRANTIES.
EACH OF THE PARTIES INDIVIDUALLY
(AND ONLY WITH RESPECT TO ITSELF) HEREBY REPRESENTS AND WARRANTS AS OF THE DATE
HEREOF THAT:
(A)
SUCH PARTY IS AN ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION AND HAS ALL
REQUISITE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND PERFORM ITS
OBLIGATIONS HEREUNDER.
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY SUCH PARTY OF THIS
AGREEMENT AND THE CONSUMMATION BY SUCH PARTY OF THE TRANSACTIONS CONTEMPLATED
HEREBY HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ORGANIZATIONAL ACTION OF THE
BOARD OF DIRECTORS OR SIMILAR GOVERNING BODY OF SUCH PARTY, AND NO OTHER ACTION
ON THE PART OF SUCH PARTY IS NECESSARY FOR THE EXECUTION, DELIVERY AND
PERFORMANCE BY SUCH PARTY OF THIS AGREEMENT AND THE CONSUMMATION BY SUCH PARTY
OF THE TRANSACTIONS CONTEMPLATED HEREBY.
THIS AGREEMENT HAS BEEN DULY EXECUTED
AND DELIVERED BY SUCH PARTY AND, ASSUMING DUE AUTHORIZATION, EXECUTION AND
DELIVERY ON BEHALF OF THE OTHER PARTY HERETO, IS A LEGAL, VALID AND BINDING
OBLIGATION OF SUCH PARTY, ENFORCEABLE AGAINST SUCH PARTY IN ACCORDANCE WITH ITS
TERMS, EXCEPT TO THE EXTENT THAT ENFORCEABILITY MAY BE LIMITED BY