|
Deposit and Trust Agreement as to the City and, except as otherwise provided herein, the
<br />Escrow Bank shall incur no liability in respect thereof. The Escrow Bank shall not be liable in
<br />connection with the performance of its duties under this Escrow Deposit and Trust Agreement
<br />except for its own negligence, willful misconduct or default, and the duties and obligations of
<br />the Escrow Bank shall be determined by the express provisions of this Escrow Deposit and
<br />Trust Agreement. The Escrow Bank may consult with counsel, who may or may not be counsel
<br />to the City, and in reliance upon the written opinion of such counsel shall have full and
<br />complete authorization and protection in respect of any action taken, suffered or omitted by it
<br />in good faith in accordance therewith. Whenever the Escrow Bank shall deem it necessary or
<br />desirable that a matter be proved or established prior to taking, suffering, or omitting any
<br />action under this Escrow Deposit and Trust Agreement, such matter (except the matters set
<br />forth herein as specifically requiring a certificate of a nationally recognized firm of independent
<br />certified public accountants or an opinion of counsel) may be deemed to be conclusively
<br />established by a written certification of the City. The Escrow Bank may conclusively rely and
<br />shall be fully protected in acting or refraining from acting upon any resolution, certificate,
<br />statement, instrument, opinion, report, notice, request, consent, order, approval or other paper
<br />or document believed by it to be genuine and to have been signed or presented by the proper
<br />party or parties.
<br />Anything in this Escrow Deposit and Trust Agreement to the contrary notwithstanding,
<br />in no event shall the Escrow Bank be liable for special, indirect, punitive or consequential loss
<br />or damage of any kind whatsoever (including but not limited to lost profits), even if the
<br />Escrow Bank has been advised of the likelihood of such loss or damage and regardless of the
<br />form of action.
<br />The Escrow Bank agrees to accept and act upon instructions or directions pursuant to
<br />this Escrow Deposit and Trust Agreement sent by unsecured e -mail, facsimile transmission or
<br />other similar unsecured electronic methods, provided, however, that, the Escrow Bank shall
<br />have received an incumbency certificate listing persons designated to give such instructions or
<br />directions and containing specimen signatures of such designated persons, which such
<br />incumbency certificate shall be amended and replaced whenever a person is to be added or
<br />deleted from the listing. If the City elects to give the Escrow Bank e -mail or facsimile
<br />instructions (or instructions by a similar electronic method) and the Escrow Bank in its
<br />discretion elects to act upon such instructions, the Escrow Bank's understanding of such
<br />instructions shall be deemed controlling. The Escrow Bank shall not be liable for any losses,
<br />costs or expenses arising directly or indirectly from the Escrow Bank's reliance upon and
<br />compliance with such instructions notwithstanding such instructions conflict or are
<br />inconsistent with a subsequent written instruction. The City agrees to assume all risks arising
<br />out of the use of such electronic methods to submit instructions and directions to the Escrow
<br />Bank, including without limitation the risk of the Escrow Bank acting on unauthorized
<br />instructions, and the risk of interception and misuse by th rd parties.
<br />The City hereby assumes liability for, and hereby agrees (whether or not any of the
<br />transactions contemplated hereby are consummated), to the extent permitted by law, to
<br />indemnify, protect, save and hold harmless the Escrow Bank and its respective successors,
<br />assigns, agents, servants, employees, directors and officers from and against any and all
<br />liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and
<br />disbursements (including legal fees and disbursements) of whatsoever kind and nature which
<br />may be imposed on, incurred by, or asserted against, at any time, the Escrow Bank (whether or
<br />not also indemnified against by any other person under any other agreement or instrument)
<br />and in any way relating to or arising out of the execution and delivery of this Escrow Deposit
<br />and Trust Agreement, the establishment of the Escrow Fund, the retention of the moneys
<br />therein and any payment, transfer or other application of moneys by the Escrow Bank in
<br />accordance with the provisions of this Escrow Deposit and Trust Agreement, or as may arise
<br />-4-
<br />
|