ESCROW AGREEMENT
This Escrow Agreement, dated as of January 10, 2005, (the "Escrow Agreement"), is entered into by and among Borealis Mining Company, a Nevada corporation ("Buyer"), Gryphon Gold Corporation, a Nevada corporation ("Guarantor"), and Lawyers Title Agency of Arizona, LLC., an Arizona corporation, as escrow agent (the "Escrow Agent").
RECITALS
WHEREAS, Buyer, Guarantor and Golden Phoenix Minerals, Inc., a
Minnesota corporation ("Seller"), have entered into a purchase agreement dated January 10, 2005 ("Purchase Agreement") whereby Seller has agreed to sell and assign its interest in certain Property and Buyer has agreed to purchase and accept such Property pursuant to the terms of the Purchase Agreement;
WHEREAS, Buyer has agreed to make scheduled payments payable to Seller ("Purchase Price" as defined in the Purchase Agreement) pursuant to the terms of the Purchase Agreement;
WHEREAS, Guarantor has agreed to pledge as security certain securities ("Pledged Stock" as defined in the Purchase Agreement) pursuant to the terms of the Purchase Agreement; and
WHEREAS, the Escrow Agent has agreed with Buyer and Guarantor to hold the Purchase Price and Pledged Stock in escrow pursuant to the terms and conditions provided in the Purchase Agreement and this Escrow Agreement.
AGREEMENT
In consideration of the mutual covenants and agreements contained herein, Buyer, Guarantor and Escrow Agent hereby agree as follows:
1. Buyer agrees to deposit the Purchase Price with the Escrow Agent in accordance with the Purchase Agreement and the Purchase Price deposited to the Escrow Agent shall be immediately negotiable (wired) and Escrow Agent shall disburse the Purchase Price in accordance with the terms set out in the Purchase Agreement without any further authorization of the parties. Buyer hereby irrevocably authorizes and directs the Escrow Agent to hold and disburse the Purchase Price pursuant to the terms of the Purchase Agreement and this Escrow Agreement.
2. Guarantor agrees to deposit the Pledged Stock with Escrow Agent in accordance with the Purchase Agreement and Escrow Agent hereby agrees to hold the Pledged Stock in escrow and disburse the Pledged Stock in accordance with the terms set out in the Purchase Agreement without any further authorization of the parties. Guarantor hereby irrevocably authorizes and directs the Escrow Agent to hold and disburse the Pledged Stock pursuant to the terms of the Purchase Agreement and this Escrow Agreement
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3. Escrow Agent Escrow Agent is not responsible for monitoring the due dates for payment of the Purchase Price as described in the Purchase Agreement.
4. Escrow shall be automatically cancelled on the 366th day following the Closing Date as described in the Purchase Agreement.
5. The Escrow Agent shall have no liability to Buyer or Guarantor, their respective shareholders or any other person with respect to any such suspension of performance or disbursement into court, specifically including any liability or claimed liability that may arise, or be alleged to have arisen, out of or as a result of any delay in the disbursement of funds held in escrow or any delay in or with respect to any other action required or requested of the Escrow Agent.
6. The Escrow Agent may resign from the performance of its duties hereunder at any time by giving ten (10) days' prior written notice to the Buyer and Guarantor. Such resignation shall take effect upon the appointment of a Successor Escrow Agent as provided herein below. Upon any such notice of resignation, the parties hereto jointly shall appoint a Successor Escrow Agent hereunder, which shall be a commercial bank, trust company or other financial institution with a combined capital and surplus in excess of $10,000,000. Upon the acceptance in writing of any appointment as escrow agent hereunder by a Successor Escrow Agent, such Successor Escrow Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from its duties and obligations under this Escrow Agreement, but shall not be discharged from any liability for actions taken as Escrow Agent hereunder prior to such succession. After any retiring Escrow Agent's resignation, the provisions of this Escrow Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Escrow Agent under this Escrow Agreement. The retiring Escrow Agent shall transmit all records pertaining to the Escrow Fund and shall pay all funds held by it in escrow to the successor Escrow Agent, after making copies of such records as the retiring Escrow Agent deems advisable and after deduction and payment to the retiring Escrow Agent of all fees and expenses (including court costs and attorneys' fees) payable to or incurred by the retiring Escrow Agent in connection with the performance of its duties and the exercise of its rights hereunder.
7. The Escrow Agent shall have no liability or obligation with respect to the Escrow Fund except for Escrow Agent's willful misconduct or gross negligence. The Escrow Agent's sole responsibility shall be for the safekeeping, and disbursement of the Escrow Fund in accordance with the terms of the Purchase Agreement and this Escrow Agreement. The Escrow Agent shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. The Escrow Agent may rely upon any instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which the Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by the person or parties purporting to sign the same and to conform to the provisions of this Escrow Agreement. In no event shall the Escrow Age ...