Common use of Authority; Indemnification Clause in Contracts

Authority; Indemnification. Buyer and Escrow Agent shall each be entitled to rely on any action taken by Sellers’ Representative, pursuant to the authority granted herein (each, an “Authorized Action”), on behalf of each Seller without any duty to investigate whether or not such action was properly authorized or taken, and each Authorized Action shall be binding on each Seller as fully as if such Person had taken such Authorized Action. The Sellers will indemnify, defend and hold harmless the Sellers’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Sellers’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Sellers’ Representative, the Sellers’ Representative will reimburse the Sellers the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Sellers’ Representative by the Sellers, any such Representative Losses may be recovered by the Sellers’ Representative from (i) the funds in the Sellers’ Representative Holdback Amount and (ii) any other funds that become payable to the Sellers under this Agreement at such time as such amounts would otherwise be distributable to the Sellers; provided, that while this section allows the Sellers’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Sellers from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Sellers’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Sellers’ Representative be required to advance its own funds on behalf of the Sellers or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Sellers set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Sellers’ Representative under this section. Notwithstanding anything in this Agreement to the contrary, neither Buyer nor any of its Affiliates (including the Company) will have any obligations, to the Sellers’ Representative, the Sellers or any other party, to indemnify, defend, hold harmless or otherwise with respect to any Representative Losses. The foregoing indemnities will survive the Closing, the resignation or removal of the Sellers Representative or the termination of this Agreement.

Authority; Indemnification. Buyer Värde Partners, Inc. has been duly appointed and Escrow Agent authorized by the Stockholders to serve as the Stockholder Representative. After the Closing, the Parent or the Surviving Entity shall each be entitled to rely on any decision, notice, consent, instruction, action taken by Sellers’ or omission of the Stockholder Representative, on behalf of the Stockholders, pursuant to the authority granted herein Section 9.17(a) (each, an “Authorized Action”), on behalf of each Seller without any duty to investigate whether or not such action was properly authorized or taken, and each Authorized Action shall be binding on each Seller Stockholder as fully as if such Person Stockholder had taken such Authorized Action and none of the Parent, the Surviving Entity or any of their Affiliates shall be liable to any Stockholder or any other Persons for actions taken or omitted in accordance with or reliance upon any such Authorized Action. The Sellers Parent agrees that the Stockholder Representative, solely in its capacity as the Stockholder Representative, shall have no liability to the Parent or the Surviving Entity for any Authorized Action, except as set forth in the Agreement or to the extent that such Authorized Action is found by a final order of a court of competent jurisdiction to have constituted fraud, gross negligence, willful misconduct, or bad faith. The Stockholders, severally and not jointly, will indemnify, defend and hold harmless the Sellers’ Stockholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Sellers’ Stockholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the fraud, gross negligence or negligence, willful misconduct or bad faith of the Sellers’ Stockholder Representative, the Sellers’ Stockholder Representative will reimburse the Sellers Stockholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, gross negligence negligence, willful misconduct or willful misconduct. If not paid directly to the Sellers’ Representative by the Sellers, any such Representative Losses may be recovered by the Sellers’ Representative from (i) the funds in the Sellers’ Representative Holdback Amount and (ii) any other funds that become payable to the Sellers under this Agreement at such time as such amounts would otherwise be distributable to the Sellers; provided, that while this section allows the Sellers’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Sellers from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Sellers’ Representative from seeking any remedies available to it at law or otherwisebad faith. In no event will the Sellers’ Stockholder Representative be required to advance its own funds on behalf of the Sellers Stockholders or otherwiseotherwise and the Stockholder Representative is entitled to direct any reimbursement or payment of its expenses incurred, and indemnification obligations arising from, its performance of duties as Stockholder Representative from the Merger Consideration due and payable to the Stockholders and Converted Equity Holders following the Closing (as adjusted pursuant to Section 2.13 and including any Barge Rig Holdback Amount to be released to the Stockholders and the Converted Equity Holders) after any adjustments pursuant to Section 2.13 and Section 8.3, if any, and before any distribution of Merger Consideration to the Stockholders and Converted Equity Holders. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Sellers Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Sellers’ Stockholder Representative under this section. Notwithstanding anything in this Agreement to the contrary, neither Buyer nor any of its Affiliates (including the Company) will have any obligations, to the Sellers’ Representative, the Sellers or any other party, to indemnify, defend, hold harmless or otherwise with respect to any Representative LossesSection 9.17. The foregoing indemnities will survive the ClosingClosing until the applicable statute of limitations, the resignation or removal of the Sellers Stockholder Representative or the termination of this Agreement.

Authority; Indemnification. Buyer Each of the Sellers agrees that Buyer, Merger Sub and Escrow Agent the Surviving Company shall each be entitled to rely on any action taken by the Sellers’ RepresentativeRepresentative without independent inquiry into the capacity of the Sellers’ Representative to so act, on behalf of such Seller, pursuant to the authority granted herein Section 8.02 (each, an “Authorized Action”), on behalf of each Seller without any duty to investigate whether or not such action was properly authorized or taken, and that each Authorized Action shall be binding on each Seller as fully as if such Person Seller had taken such Authorized Action; provided, however, that the Sellers’ Representative will have no obligation to act on behalf of any Seller. Buyer and Merger Sub agree that the Sellers’ Representative shall have no liability to Buyer and Merger Sub for any Authorized Action, except to the extent that such Authorized Action is found by a final order of a court of competent jurisdiction to have constituted fraud or willful breach. All actions, notices, communications and determinations by the Sellers’ Representative to carry out such functions shall conclusively be deemed to have been authorized by, and shall be binding upon, the Sellers. The Sellers Sellers’ Representative will indemnifyat all times be entitled to rely on any directions received from the Required Holders; provided, defend however, that the Sellers’ Representative shall not be required to follow any such direction, and shall be under no obligation to take any action in its capacity as the Sellers’ Representative based upon any such direction. Each Seller hereby severally, for itself only and not jointly and severally, agrees to indemnify and hold harmless the Sellers’ Representative from and its partners, members, officers, managers, directors, employees, agents or representatives (collectively, the “Sellers’ Representative Group”) against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, reasonable costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document locationLosses incurred by the Sellers’ Representative Group in connection with, duplication and shipment) (collectively, “Representative Losses”) or arising out of of, any actions taken or omitted to be taken in connection with the Sellers’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case capacity as such the Sellers’ Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct hereunder (except for those arising out of the Sellers’ Representative’s fraud or willful breach), including the costs of responding to indemnity claims or from assuming the defense of Third Party Claims. The Sellers' Representative (for the Sellers’ Representative will reimburse Group) shall be entitled to full reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Sellers’ Representative in such capacity (or any of its officers, managers, directors, employees, agents or representatives in connection therewith), and to full indemnification against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Sellers’ Representative (except for those arising out of the Sellers’ Representative’s fraud or willful breach), including the costs and expenses of investigation and defense of claims, from the Sellers the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not (including from funds paid directly to the Sellers’ Representative under this Agreement and/or otherwise received by the Sellers, any such Representative Losses may be recovered by it in its capacity as the Sellers’ Representative from (i) the Representative, or funds in the Sellers’ Representative Holdback Amount and (ii) any other funds that become payable to be distributed to the Sellers under this Agreement at such time as such amounts would otherwise be distributable its direction, pursuant to the Sellers; provided, that while or in connection with this section allows Agreement (including the Sellers’ Representative to Fund Account)). All such costs shall be paid from firstly (but not exclusively) by setoff against, and prompt release from, the aforementioned sources of funds, this does not relieve the Sellers from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent funds remaining in the Sellers’ Representative from seeking any remedies available to it at law or otherwiseFund Account. In no event will the Sellers’ Representative be required to advance its own funds on behalf furtherance of the Sellers or otherwise. Notwithstanding foregoing, notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Sellers set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Sellers’ Representative under this section. Notwithstanding anything in this Agreement shall have the power and authority to the contrary, neither Buyer nor any of its Affiliates (including the Company) will have any obligations, set aside and retain additional funds paid to or received by it into the Sellers’ RepresentativeRepresentative Fund Account, or direct payment of additional funds to be paid to the Sellers as Merger Consideration pursuant to this Agreement at Closing or thereafter into the Sellers’ Representative Fund Account, to satisfy such obligations (including to establish such reserves as the Sellers’ Representative determines in good faith to be appropriate for such costs and expenses that are not then known or determinable). The relationship created herein is not to be construed as a joint venture or any form of partnership between or among the Sellers’ Representative or any Seller for any purpose of U.S. federal or state law, including federal or state tax purposes. Neither the Sellers’ Representative nor any other party, to indemnify, defend, hold harmless member of the Sellers’ Representative Group owes any fiduciary or otherwise with respect other duty to any Representative LossesSeller. The foregoing indemnities will survive the Closing, the resignation or removal Any balance of the Sellers’ Representative Fund Amount not incurred by the Sellers’ Representative in its capacity as the Sellers’ Representative shall be returned to the Sellers Representative or in proportion to their Pro Rata Shares within 60 days after the termination final resolution of this Agreementall claims for indemnification made by any Buyer Indemnitee under Article IX.

Authority; Indemnification. Buyer Each of the Stockholders agrees that Parent, Merger Sub and Escrow Agent the Surviving Company shall each be entitled to rely on any action taken by Sellers’ Representativethe Stockholder Representative without independent inquiry into the capacity of the Stockholder Representative to so act, on behalf of such Stockholder, pursuant to the authority granted herein Section 10.15(b) (each, an “Authorized Action”), on behalf of each Seller without any duty to investigate whether or not such action was properly authorized or taken, and that each Authorized Action shall be binding on each Seller Stockholder as fully as if such Person Stockholder had taken such Authorized Action; provided, however, that the Stockholder Representative will have no obligation to act on behalf of any Stockholder. Parent and Merger Sub agree that the Stockholder Representative shall have no liability to Parent or Merger Sub for any Authorized Action (except for those arising out of the Stockholder Representative’s fraud). All actions, notices, communications and determinations by the Stockholder Representative to carry out such functions shall conclusively be deemed to have been authorized by, and shall be binding upon, the Stockholders. The Sellers Stockholder Representative will indemnifyat all times be entitled to rely on any directions received from the Required Holders; provided, defend however, that the Stockholder Representative shall not be required to follow any such direction, and shall be under no obligation to take any action in its capacity as the Stockholder Representative based upon any such direction. Each Stockholder hereby severally, for itself only and not jointly and severally, agrees to indemnify and hold harmless the Sellers’ Stockholder Representative from and its representatives (collectively, the “Stockholder Representative Group”) against any and all of its reasonable losses, liabilities, damagescosts or expenses or damages incurred by the Stockholder Representative Group in connection with, claimsor arising out of, penalties, fines, forfeitures, actions, fees, costs and expenses any actions taken or omitted to be taken in the Stockholder Representative’s capacity as the Stockholders’ representative hereunder (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) except for those arising out of the Stockholder Representative’s fraud), including the costs of responding to indemnity claims or from assuming the defense of third party claims. The Stockholder Representative (for the Stockholder Representative Group) shall be entitled to full reimbursement from the Stockholders for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Stockholder Representative in such capacity (or any of its officers, directors, employees, agents or representatives in connection with therewith), and to full indemnification by the Sellers’ Stockholders against any loss, liability, cost or expense arising out of actions taken or omitted to be taken in its capacity as the Stockholder Representative (except for those arising out of the Stockholder Representative’s execution and performance of this Agreement and any agreements ancillary heretofraud), in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Sellers’ Representative, the Sellers’ Representative will reimburse the Sellers the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Sellers’ Representative by the Sellers, any such Representative Losses may be recovered by the Sellers’ Representative from (i) the funds in the Sellers’ Representative Holdback Amount and (ii) any other funds that become payable to the Sellers under this Agreement at such time as such amounts would otherwise be distributable to the Sellers; provided, that while this section allows the Sellers’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Sellers from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Sellers’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Sellers’ Representative be required to advance its own funds on behalf of the Sellers or otherwiseincluding. Notwithstanding anything in this Agreement to the contrary, the Stockholder Representative shall have the power and authority to set aside and retain funds otherwise payable to the Stockholders into a separate account to satisfy any restrictions or limitations on liability or indemnification obligations of, or provisions limiting of the recourse against non-parties otherwise applicable to, the Sellers set forth elsewhere in this Agreement are Stockholders (including any obligations relating to indemnity claims). The relationship created herein is not intended to be applicable to construed as a joint venture or any form of partnership between or among the indemnities provided to Stockholder Representative or any Stockholder for any purpose of U.S. federal or state law, including federal or state Tax purposes. Neither the Sellers’ Stockholder Representative under this section. Notwithstanding anything in this Agreement to the contrary, neither Buyer nor any other member of its Affiliates (including the Company) will have Stockholder Representative Group owes any obligations, to the Sellers’ Representative, the Sellers fiduciary or any other party, to indemnify, defend, hold harmless or otherwise with respect duty to any Representative Losses. The foregoing indemnities will survive the Closing, the resignation or removal of the Sellers Representative or the termination of this AgreementStockholder.