ESCROW AGREEMENT
This ESCROW AGREEMENT, is dated as of December 16, 2005 ("Agreement"), by
and between Chief Consolidated Mining Company, an Arizona corporation
("Company"), and Xxxxxx Xxxxxxxx LLP, a Pennsylvania limited liability
partnership ("Escrow Agent").
RECITALS
WHEREAS, the Company proposes to place ("Placement"), up to $2,500,000
principal amount of Convertible Debentures ("Debentures") with Dimeling
Xxxxxxxxx & Park Reorganization Fund II, a private investment partnership and
current shareholder of the Company located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
XX 00000 ("Purchaser");
WHEREAS, in connection with the Placement, the Company desires to establish
an escrow account ("Escrow Account") with the Escrow Agent for the purpose of
holding the funds received from the Purchaser ("Placement Funds"), for the
purchase of the Debentures;
WHEREAS, with the Placement Funds held in escrow, the Company intends to
contact its various creditors to solicit their individual acceptances
(collectively, "Acceptances"), of an amount to be paid to each in complete
settlement of such creditor's receivable due (collectively, "Receivables");
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is acknowledged by each of the
parties hereto, the Company and the Escrow Agent hereby agree as follows:
TERMS AND CONDITIONS
1. Appointment of Escrow Agent. The Company hereby appoints the Escrow
Agent to act as agent on its behalf pursuant to the terms and conditions of this
Agreement, and the Escrow Agent hereby consents to and accepts its appointment
in such capacity in accordance with the terms and conditions set forth in this
Agreement.
2. Establishment of Escrow Account. The Escrow Agent shall deposit the
Placement Funds in an interest-bearing account maintained with Wachovia Bank and
agrees to hold and dispose of the Placement Funds in accordance with the terms
and conditions of this Agreement. Amounts may be wired to the Escrow Agent to be
held under this Agreement, in accordance with the following wire instructions:
Account Name: Xxxxxx Xxxxxxxx LLP Client Trust Account (Chief
Consolidated Mining Company)
Account Number: 2100013009297
ABA Routing No.: 000000000
3. Duties of Escrow Agent. The Escrow Agent shall have no duties or
obligations hereunder except those specifically set forth herein, and such
duties and obligations
shall be determined solely by the express provisions of this Agreement. In
connection with its duties hereunder, the Escrow Agent shall have no
responsibility for the genuineness or validity of any document or other item,
including, without limitation, any written notice, instruction, request,
consent, certificate, order, affidavit, letter, telegram or other document
deposited with or delivered to it and shall be conclusively protected and shall
have no liability for acting in accordance with any of the foregoing documents
or items furnished to it hereunder and believed by it to be genuine and to have
been signed by the proper party or parties. The Escrow Agent shall not be liable
for anything it may do or refrain from doing in connection with its duties
hereunder including, without limitation, any mistake of fact or error of
judgment or any act or omission of any kind, except as a result of its own gross
negligence, willful misconduct or bad faith. The Escrow Agent may consult with
legal counsel at the cost and expense of the Company in the event of any dispute
or question as to the construction of any of the provisions hereof or its duties
hereunder, and it shall incur no liability and be fully protected in respect of
any action taken or omitted by it, in good faith, on the advice of such counsel.
The Escrow Agent shall not be bound by any modification, amendment, termination,
cancellation, rescission or supersession of this Agreement, unless in writing
and signed by the parties hereto. If the Escrow Agent is uncertain as to its
duties or rights under this Agreement or receives instructions, claims or
demands from the Company or any other person or entity that, in its opinion,
conflict with any of the provisions of this Agreement, it may refrain from
taking any action other than to keep safely all property held in escrow until it
is directed otherwise in writing by the Company or by a final, unappealable
order or judgment of a court of competent jurisdiction in the Commonwealth of
Pennsylvania. The Escrow Agent shall have no liability on account of following
the instructions contained in or given in accordance with this Agreement or
written instructions given by the Company or set forth in an order or judgment
of a court of competent jurisdiction in the Commonwealth of Pennsylvania. The
Escrow Agent shall not be required to institute legal proceedings of any kind
and shall not be required to defend any legal proceedings that may be instituted
against it in respect of the subject matter of such instructions, unless
requested to do so and indemnified to its satisfaction against the cost and
expense of such defense.
4. Construction of Instruments by Escrow Agent. The Escrow Agent shall not
be required to act in respect of the Placement Funds deposited in the Escrow
Account, except in accordance with this Agreement.
5. Indemnity of Escrow Agent. The Company agrees to indemnify, defend and
hold harmless the Escrow Agent, its affiliates, and its officers, partners,
employees, successors, assigns, attorneys and agents (each an "Indemnified
Party") from and against any and all liabilities, losses, damages, costs,
expenses, penalties, demands, claims, actions, judgments, suits, and
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of an Indemnified Party for legal counsel,
whether in-house or engaged, and the reasonable legal costs and expenses of
defending against any of the foregoing) that may be suffered or incurred by an
Indemnified Party as a result of anything such Indemnified Party may do or
refrain from doing in connection with the performance of the Escrow Agent's
duties as Escrow Agent hereunder, relating to or arising out of the Escrow
Agreement or any of the transactions contemplated herein; provided that the
foregoing indemnification shall not extend to the gross negligence, bad faith or
willful misconduct of an Indemnified Party. Promptly after the receipt by the
Escrow Agent or an Indemnified Party of notice of any demand or claim or the
commencement of any action, suit or proceeding, the
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Escrow Agent shall, if a claim in respect thereof is to be made against the
Company, notify the Company thereof in writing. The indemnification obligation
of the Company shall survive any termination of this Agreement, or the Escrow
Account, or of the Escrow Agent's services hereunder.
6. Fees and Expenses of Escrow Agent. The Escrow Agent shall be compensated
by the Company at its hourly rate for attorneys or other involved persons and
shall be reimbursed by the Company for all out-of-pocket expenses, disbursements
and advances incurred by it in connection with the performance of its duties
hereunder from the Placement Funds. The obligations of the Company under this
provision to compensate the Escrow Agent and to pay or reimburse the Escrow
Agent for reasonable expenses, disbursements and advances shall survive the
earlier of the termination of this Agreement or the Escrow Agent's services
hereunder.
7. Escrow Period and Term of Agreement. The escrow period ("Escrow Period")
shall begin with the deposit of the Placement Funds into the Escrow Account by
the Purchaser and shall terminate upon the earliest to occur of the following:
a. 5:00 p.m. EST time on June 30, 2006 (the "Initial Termination
Date"), unless extended to a time not later than December 31, 2006 (the "Final
Termination Date") pursuant to the Extension Notice in the form of Exhibit A
(attached hereto), signed by the Company and delivered to the Escrow Agent prior
to 5:00 p.m. EST time on June 30, 2006 (the Initial Termination Date or the
Final Termination Date, as applicable, being referred to herein as the
"Termination Date"), whereupon the remaining Placement Funds shall be disbursed
as set forth in Section 8 hereof.
b. The Company understands and agrees that during the Escrow Period,
the Company shall not be entitled to any funds on deposit in the Escrow Account
(except as released to the Company pursuant to Section 8 hereof), and no such
funds shall become the property of the Company or any other person or entity,
nor shall such funds be subject to the debts of the Company or any other person
or entity (except as released on behalf of the Company or to the Company
pursuant to Section 8 hereof).
8. Disbursement From the Escrow Account. During the Escrow Period, the
Placement Funds shall be released from escrow as follows:
a. Upon deposit of the Placement Funds into the Escrow Account, an
amount of Twenty-six Thousand Dollars ($26,000) shall be released and paid to
the order of the Escrow Agent as compensation for services to the Company.
b. Upon deposit of the Placement Funds into the Escrow Account, an
amount of Twenty-five Thousand Dollars ($25,000) shall be released and paid to
the order of Xxxxxx Xxxxxxx & Xxxxxxx, Attention Xxxx Xxxxxx, as compensation
for services to the Company.
c. Upon deposit of the Placement Funds into the Escrow Account, an
amount of Two Thousand Dollars ($2,000) shall be released and paid to the order
of Xxxx Xxxxxxxxx as compensation for services to the Company.
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d. Upon deposit of the Placement Funds into the Escrow Account, an
amount of Twenty Thousand Dollars ($20,000) shall be released and paid to the
order of Mellon Investment Services, as transfer agent, for the Company's class
of common stock as compensation for services to the Company.
e. Upon receipt of a written request for disbursement executed by the
Company in connection with future legal, accounting, transfer agent or
regulatory fees and expenses incurred on behalf of the Company, such
disbursement amounts as requested shall be released and paid in accordance with
such written requests.
f. Upon receipt of a written request for disbursement executed by the
Company, accompanied by a written certification from the Company that it has
received Acceptances aggregating more than fifty percent (50%) of the unsecured
Receivables outstanding as of the date hereof ("Receivable Certification"), all
remaining Placement Funds shall be released and paid to the Company, plus any
interest earned thereon.
g. A request for disbursement from the Escrow Account submitted by the
Company shall be in substantially the same form as Exhibit B (attached hereto).
The Escrow Agent shall not be responsible for evaluating the truth or
sufficiency of the summary statement or the Company's request(s) for
disbursement.
9. Controversies. The Escrow Agent shall not be required to resolve any
controversy between the Company and the Purchaser, or any controversy involving
any third party, whether the same involves questions or law or fact, nor shall
the Escrow Agent be required to take any action in connection therewith. In the
event of any such controversy, the Escrow Agent shall (i) hold the Placement
Funds until such time as the Escrow Agent has received notice executed by the
Company, and any such third party, that such controversy has been settled by
agreement or a certified copy of a final judgment, beyond all appeal periods,
entered by a court of competent jurisdiction resolving such controversy, or (ii)
deposit the Placement Funds into court. Without limiting the foregoing, the
Escrow Agent may, in its sole discretion, institute such interpleader or other
proceedings as it may deem proper.
10. Successor Escrow Agent. If the Escrow Agent becomes unable to act
before full and final disbursement of all Placement Funds, the Company agrees
that a principal of Xxxxxx Xxxxxxxx LLP, reasonably acceptable to the Company,
shall be appointed as successor escrow agent.
11. Resignation of Escrow Agent. The Escrow Agent may resign hereunder, at
any time, in its sole discretion, by giving prior written notice thereof to the
Company; provided, however, the Escrow Agent shall not be permitted to resign
unless and until a successor escrow agent shall have been designated and
approved by the Company, and the Escrow Agent shall deliver the Placement Funds
to any such escrow agent selected by the Company as notified to the Escrow Agent
in writing.
12. Termination of Escrow Agreement. Upon release and delivery of all of
the Placement Funds under this Escrow Agreement, this Escrow Agreement shall be
automatically cancelled and all rights and obligations of the parties hereto
shall automatically
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cease and terminate. The Company shall release and discharge the Escrow Agent
from any and all responsibility and/or liability arising out of its execution
and performance under this Agreement and shall execute written notice of such
release and discharge in the form of Exhibit C.
13. Notices. All notices, demands and communications provided for herein or
made hereunder shall be delivered, mailed first class with postage prepaid or
sent by facsimile transmission, addressed in each case as follows, until another
address shall have been designated in a written notice given in like manner, and
shall be deemed to have been given or made when so delivered or mailed or sent
by facsimile transmission:
if to the Company: Chief Consolidated Mining Company
c/o Dimeling Xxxxxxxxx & Park
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
if to the Escrow Agent: Xxxxxx Xxxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esquire
Direct Facsimile No.: (000) 000-0000
General Facsimile No.: (000) 000-0000
14. Entire Agreement. This Agreement constitutes the entire and whole
agreement and understanding between the parties with respect to the subject
matter hereof and supersedes any and all prior agreements and understandings
relating to the subject matter hereof.
15. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, legal
representatives and permitted assigns, but shall not be assignable by any party
hereto without the prior written consent of the other party hereto.
16. Amendments, Modification or Waiver. No amendment, modification or
waiver of this Agreement or any provision hereof shall be binding or effective
for any purpose unless it is made in a writing signed by the party against whom
enforcement of such amendment, modification or waiver is sought. A waiver of a
right or remedy on any one occasion shall not be construed as a bar to or waiver
of any such right or remedy on any other occasion.
17. Interpretation. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
18. Severability. Whenever possible, each provision hereof shall be
interpreted in such manner as to be effective and valid under applicable law,
but in case any one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal or
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unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein, unless the deletion of such
provision or provisions would result in such a material change as to cause the
performance hereof to be unreasonable.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
conflict of law principles.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be considered an original instrument, but all
of which shall be considered one and the same agreement and shall become binding
when one or more counterparts have been signed and delivered by each of the
parties hereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the date first above written.
CHIEF CONSOLIDATED MINING COMPANY
By:
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Name: Xxxxxxx Xxxxxxxxx
Title: President
XXXXXX XXXXXXXX LLP, as Escrow Agent
By:
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Name: Xxxxxx X. Xxxxxx, Esquire
Title: Partner
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