Common use of Rights of the Escrow Agent Clause in Contracts

Rights of the Escrow Agent. 5.1 The Escrow Agent shall have no duties or responsibilities except those expressly set forth herein and shall not be subject to, nor obliged to recognize, monitor or enforce the terms of any other agreement between, or direction or instruction of, Purchaser or Seller, even though reference thereto may be made herein; provided, however, that these escrow instructions may be amended at any time or times by an instrument in writing signed by the parties hereto. 5.2 The Escrow Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any of the undersigned or by any other person, firm or corporation, except only such notices or instructions as are hereinabove provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished, or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any of such events the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which it is so advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated. 5.3 The Escrow Agent may rely upon any instrument in writing believed in good faith by it to be genuine and sufficient and shall not be liable or responsible for any action taken or omitted in accordance with the provisions thereof. 5.4 The Escrow Agent shall not be personally liable for any act taken or omitted hereunder except for its gross negligence, bad faith or willful misconduct. 5.5 Purchaser, Lori and Seller (the "Indemnifying Parties") hereby agree tx xx jointly and severally liable for, and indemnify the Escrow Agent and hold it harmless against any loss, liability, cost and expense (including reasonable attorneys' fees) which may be imposed upon or incurred by the Escrow Agent hereunder, except through the Escrow Agent's own gross negligence, bad faith or willful misconduct. The Escrow Agent shall notify the Indemnifying Parties promptly of any claim for which it may seek indemnity, although the failure to notify shall only excuse the obligations of an Indemnifying Party hereunder to the extent that it prejudices the ability of such Indemnifying Party to contest any such claim. The Indemnifying Parties may contest the claim, and the Escrow Agent shall cooperate in any such contest, in which case the Escrow Agent may at its discretion have separate counsel, and the Indemnifying Parties shall pay the reasonable fees and expenses of such counsel. The Indemnifying Parties need not pay for any settlement made without their consent. 5.6 In the event of any disagreement between any of the parties hereto resulting in adverse claims or demands being made in connection with the subject matter of this Agreement, or in the event that the Escrow Agent should be in doubt as to what action it should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agent shall not be or become liable for damages, interest, or in any other way or to any person for its failure or refusal to act, and the Escrow Agent shall be entitled to continue so to refrain from acting until (a) the rights of all parties shall have been fully and finally adjudicated by a court of competent jurisdiction or by the mutual agreement of Purchaser , Lori and Seller and (b) the Escrow Agent shall have received xxxropriate evidence of the foregoing, in which event the Escrow Agent shall release the Escrow Funds in accordance with such adjudication or agreement, as the case may be. In the alternative, the Escrow Agent, may, but shall not be obligated to, file a suit in interpleader (the parties hereto consenting to the filing of such action in the Bankruptcy Court for the Eastern District of New York) for a declaratory judgment for the purpose of having the respective rights of the parties adjudicated, and may deposit with such court the Escrow Funds, in which case Purchaser and Lori agree to pay all costs, expenses and attorneys' fees xxxurred by the Escrow Agent in connection therewith, the amount thereof to be fixed and such judgment therefor to be rendered by the court in such suit. 5.7 Purchaser and Lori acknowledge and agree that the Escrow Agent has acted xxx will continue to act as counsel to the Seller, including, without limitation, in connection with any dispute arising hereunder.

Rights of the Escrow Agent. 5.1 Acceptance by the Escrow Agent of its duties pursuant to this Escrow Agreement is subject to the following terms and conditions, which all parties to this Escrow Agreement hereby agree shall govern and control the rights and duties of the Escrow Agent: A. The duties and obligations of the Escrow Agent shall be determined solely by the express provisions of this Escrow Agreement and the Escrow Agent shall only be responsible for the performance of such duties and obligations as are specifically set out in this Escrow Agreement. This Escrow Agreement shall not be deemed to create any obligations between the parties hereto under state or federal law except as specifically provided in this Escrow Agreement. (i) The Escrow Agent is hereby released and exculpated from all liability, costs, and expenses whatsoever which arise out of or in connection with the Escrow Agent’s activities as the escrow agent hereunder, including, but not limited to, any liability, cost or expense which is caused by the negligence or gross negligence of the Escrow Agent. The Escrow Agent shall be liable only to the extent of any loss or damage which is caused by its willful misconduct. (ii) The Escrow Agent shall not be obligated to verify (i) the authenticity of any documents submitted to it as originals, (ii) the genuineness of the signatures on any documents submitted to it; (iii) the legal capacity of any persons who executed any document submitted to it; (iv) the due authorization and valid execution of any agreement submitted to it by all parties thereto; (v) that any agreement submitted to it constitutes a valid and legally binding agreement and obligation of the parties; and (vi) the conformity to the originals of any documents submitted to it (a) as photostatic copies or (b) via facsimile. C. The Escrow Agent may act or refrain from acting with respect to any matter which is referred to herein in reliance upon either: (i) the advice of any counsel who may be selected by the Escrow Agent from time to time or (ii) a good faith determination by the Escrow Agent. The Escrow Agent is hereby released and exculpated from all liability or claimed liability by the parties or any other person which may arise or be alleged to have no arisen, out of or as a result of, in connection with acting as the Escrow Agent or in refraining from acting upon either: (i) the advice of any counsel or (ii) a good faith determination by the Escrow Agent. D. The Escrow Agent shall not be required to use its own funds in the performance of any of its obligations or duties or responsibilities except those expressly set forth herein the exercise of any of its rights or powers, and shall not be subject torequired to take any action which, nor obliged in the Escrow Agent's sole and absolute judgment, could cause it to recognize, monitor incur any expense or enforce the terms of any other agreement between, or direction or instruction of, Purchaser or Seller, even though reference thereto may be made herein; provided, however, that these escrow instructions may be amended at any time or times by an instrument in writing signed by the parties hereto. 5.2 The Escrow Agent is authorizedliability unless furnished with security and indemnity which it deems, in its sole and absolute discretion, to disregard any and all notices or instructions given by any of the undersigned or by any other person, firm or corporation, except only such notices or instructions as are hereinabove provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished, or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any of such events the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which it is so advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacatedsatisfactory. 5.3 E. The Escrow Agent may rely upon any instrument paper or other document which may be submitted to the Escrow Agent in writing connection with its duties hereunder which is believed in good faith by it the Escrow Agent to be genuine and sufficient to have been signed by the proper party or parties and is hereby released and exculpated from all liability, including, but not limited to, losses, costs, consequential damages and expenses whatsoever which arises out of or in connection with its actions based upon any such paper or other document, and the Escrow Agent shall not be liable have no liability or responsible for any action taken responsibility with respect to the form, execution or omitted in accordance with the provisions validity thereof. 5.4 F. The Escrow Agent may institute or defend any action or legal process which involves any matter which is referred to herein which in any manner affects the Escrow Agent or its duties or liabilities hereunder, but the Escrow Agent shall not be personally liable for any act taken required to institute or omitted hereunder except for its gross negligence, bad faith defend such action or willful misconduct. 5.5 Purchaser, Lori and Seller (the "Indemnifying Parties") hereby agree tx xx jointly and severally liable forprocess unless or until requested to do so, and indemnify then only upon receiving full indemnity, against any and all claims, liabilities, judgments, reasonable attorneys fees and other expenses of every kind in relation thereto. Such indemnification shall be in a form and amount satisfactory to the Escrow Agent, in its sole and absolute discretion, and from such parties determined by the Escrow Agent in its sole and hold it absolute discretion. G. The Issuer agrees to and shall indemnify and save the Escrow Agent harmless from and against any losslosses, liabilityclaims, cost and expense (including liabilities, judgments, reasonable attorneys' fees) ’ fees and other expenses of every kind and nature which may be imposed upon suffered, sustained or incurred by the Escrow Agent hereunderby reason of its acceptance of, and its performance under, this Escrow Agreement except through for the Escrow Agent's own gross negligence, bad faith or ’s willful misconduct. The Escrow Agent shall notify the Indemnifying Parties promptly of any claim for which it may seek indemnityIn addition, although the failure to notify shall only excuse the obligations of an Indemnifying Party hereunder to the extent that it prejudices the ability of such Indemnifying Party to contest any such claim. The Indemnifying Parties may contest the claim, and the Escrow Agent shall cooperate in any such contest, in which case the Escrow Agent may at its discretion have separate counsel, and the Indemnifying Parties shall pay the reasonable fees and expenses of such counsel. The Indemnifying Parties need not pay for any settlement made without their consent. 5.6 In the event of any disagreement between any of the parties hereto resulting in adverse claims or demands being made in connection with the subject matter of this Agreement, or in the event that the Escrow Agent should be in doubt as to what action it should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agent shall not be or become liable for damages, interest, or in any other way or to any person for its failure or refusal to act, and the Escrow Agent shall be entitled to continue so all legal fees and costs incurred to refrain from acting until (a) engage outside counsel, or all legal fees at its then normal hourly rates and expenses incurred by it if it determines, in its sole and absolute discretion, to act as its own counsel, with respect to any matter related to this Escrow Agreement. H. The Escrow Agent may at any time, in its sole and absolute discretion, deposit the rights of all parties shall have been fully and finally adjudicated by Escrow Funds with a court of competent jurisdiction in New York, New York pursuant to an action of interpleader, and upon such deposit the Escrow Agent shall be released from any further liability or obligation as the Escrow Agent. In addition, the Escrow Agent shall be entitled to all legal fees and costs incurred to engage outside counsel, or all legal fees at its then normal hourly rates and expenses incurred by it if it determines, in its sole and absolute discretion, to act as its own counsel, with respect to any matter related to this Escrow Agreement. I. In the event of any dispute which is referred to herein, the Escrow Agent shall be entitled to consult with counsel, including itself, and commence or defend any legal proceeding if the Escrow Agent, in its good faith determination, determines to do so, and shall be entitled to all legal fees and costs incurred to engage outside counsel for all legal fees and expenses in connection with such consultation and legal proceeding and shall be further entitled to all legal fees at its then normal hourly rates and expenses incurred by it if the Escrow Agent decides to act as its own counsel, in connection with such consultation and legal proceeding and shall be further entitled to receive from the Company all reasonable expenses which are incurred by the mutual agreement Escrow Agent related to this Escrow Agreement. J. The Escrow Agent may resign at any time from its duties as the Escrow Agent by giving at least ten (10) days prior written notice ("Resignation Notice") pursuant to Paragraph “D” of Purchaser , Lori Article "8" of this Escrow Agreement to the Issuer and Seller Prospective Purchasers who have Escrow Funds being held by the Escrow Agent. The Escrow Agent shall upon the (i) acceptance of the new escrow agent by the Issuer and (bii) presentation of an executed agreement appointing said new escrow agent, turn over to said escrow agent the Escrow Funds. If a new escrow agent is not appointed within ten (10) days or if the Escrow Agent is not satisfied with the executed document appointing the new escrow agent, after the giving of the Resignation Notice, the Escrow Agent may, but shall not be required to, deposit the Escrow Funds with a court of competent jurisdiction in New York, New York. K. The Escrow Agent is not a party to or bound by any agreement pertaining to the Offering or any other agreement between the Issuer and the Prospective Purchasers, except this Escrow Agreement. L. The duties of the Escrow Agent hereunder are entirely ministerial, being limited to receiving, holding, and disbursing the amount in escrow as provided herein. The Escrow Agent may rely upon and will be protected in acting upon any paper or other document which may be submitted to it in connection with its duties hereunder and which is believed by it to be genuine and to have been signed by the proper party or parties or their representatives, and shall have no liability or responsibility with respect to the form, execution, or validity thereof. M. The Escrow Agent’s obligation to act as the Escrow Agent pursuant to this Escrow Agreement shall terminate at such time as: (i) the Escrow Agent shall deliver the Escrow Funds pursuant to Paragraphs "C" or "D" of Article "3" of this Escrow Agreement, or (ii) the Escrow Agent shall have received xxxropriate evidence of the foregoing, in which event the Escrow Agent shall release deposited the Escrow Funds in accordance with such adjudication court pursuant to Paragraph "H" of this Article "5" of this Escrow Agreement or agreement, as the case may be. In the alternative, the last sentence of Paragraph "J" of this Article "5" of this Escrow Agent, may, but shall not be obligated to, file a suit in interpleader (the parties hereto consenting to the filing of such action in the Bankruptcy Court for the Eastern District of New York) for a declaratory judgment for the purpose of having the respective rights of the parties adjudicated, and may deposit with such court the Escrow Funds, in which case Purchaser and Lori agree to pay all costs, expenses and attorneys' fees xxxurred by the Escrow Agent in connection therewith, the amount thereof to be fixed and such judgment therefor to be rendered by the court in such suitAgreement. 5.7 Purchaser and Lori acknowledge and agree that the Escrow Agent has acted xxx will continue to act as counsel to the Seller, including, without limitation, in connection with any dispute arising hereunder.

Rights of the Escrow Agent. Section 5.1 The Escrow Agent shall have no duties or responsibilities except those expressly set forth herein and shall not be subject to, nor obliged to recognize, monitor or enforce the terms of any other agreement between, or direction or instruction of, Purchaser or Seller, even though reference thereto may be made herein; provided, however, that these escrow instructions may be amended at any time or times by an instrument in writing signed by the parties hereto. Section 5.2 The Escrow Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any of the undersigned or by any other person, firm or corporation, except only such notices or instructions as are hereinabove provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished, or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any of such events the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which it is so advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated. Section 5.3 The Escrow Agent may rely upon any instrument in writing believed in good faith by it to be genuine and sufficient and shall not be liable or responsible for any action taken or omitted in accordance with the provisions thereof. Section 5.4 The Escrow Agent shall not be personally liable for any act taken or omitted hereunder except for its gross negligence, bad faith or willful misconduct. Section 5.5 Purchaser, Lori and Seller (the "Indemnifying Parties") hereby agree tx xx herexx xgree to be jointly and severally liable for, and indemnify the Escrow Agent and hold it harmless against any loss, liability, cost and expense (including reasonable attorneys' fees) which may be imposed upon or incurred by the Escrow Agent hereunder, except through the Escrow Agent's own gross negligence, bad faith or willful misconduct. The Escrow Agent shall notify the Indemnifying Parties promptly of any claim for which it may seek indemnity, although the failure to notify shall only excuse the obligations of an Indemnifying Party hereunder to the extent that it prejudices the ability of such Indemnifying Party to contest any such claim. The Indemnifying Parties may contest the claim, and the Escrow Agent shall cooperate in any such contest, in which case the Escrow Agent may at its discretion have separate counsel, and the Indemnifying Parties shall pay the reasonable fees and expenses of such counsel. The Indemnifying Parties need not pay for any settlement made without their consent. Section 5.6 In the event of any disagreement between any of the parties hereto resulting in adverse claims or demands being made in connection with the subject matter of this Agreement, or in the event that the Escrow Agent should be in doubt as to what action it should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agent shall not be or become liable for damages, interest, or in any other way or to any person for its failure or refusal to act, and the Escrow Agent shall be entitled to continue so to refrain from acting until (a) the rights of all parties shall have been fully and finally adjudicated by a court of competent jurisdiction or by the mutual agreement of Purchaser , Lori and Seller and (b) the Escrow Agent shall have received xxxropriate haxx xeceived appropriate evidence of the foregoing, in which event the Escrow Agent shall release the Escrow Funds in accordance with such adjudication or agreement, as the case may be. In the alternative, the Escrow Agent, may, but shall not be obligated to, file a suit in interpleader (the parties hereto consenting to the filing of such action in the Bankruptcy Court for the Eastern District of New York) for a declaratory judgment for the purpose of having the respective rights of the parties adjudicated, and may deposit with such court the Escrow Funds, in which case Purchaser and Lori agree to pay all costs, expenses and attorneysattornexx' fees xxxurred incurred by the Escrow Agent in connection therewith, the amount thereof to be fixed and such judgment therefor to be rendered by the court in such suit. Section 5.7 Purchaser and Lori acknowledge and agree that the Escrow Agent has xxx acted xxx and will continue to act as counsel to the Seller, including, without limitation, in connection with any dispute arising hereunder.