Common use of LIABILITY AND COMPENSATION OF ESCROW AGENT Clause in Contracts

LIABILITY AND COMPENSATION OF ESCROW AGENT. (a) The duties and obligations of the Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement, and no implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall, in determining its duties hereunder, be under no obligation to refer to any other documents between or among the parties related in any way to this Agreement (except to the extent that this Agreement specifically refers to or incorporates by reference provisions of any other document, including the Indemnity Agreement). The Consolidated Entities shall indemnify and hold the Escrow Agent harmless from and against any and all liability and expense which may arise out of any action taken or omitted by the Escrow Agent, except such liability and expense as may result from the gross negligence or willful misconduct of the Escrow Agent. The reasonable costs and expenses of the Escrow Agent to enforce its indemnification rights under this Section 7(a) shall also be paid by the Consolidated Entities. The Escrow Agent’s indemnification rights under this Section 7 shall survive the termination of this Agreement and removal or resignation of the Escrow Agent. With respect to any claims or actions against the Escrow Agent which are indemnified by the Consolidated Entities under this Section 7, the Consolidated Entities shall have the right to retain sole control over the defense, settlement, investigation and preparation related to such claims or actions; provided, that (i) the Escrow Agent may employ its own counsel to defend such a claim or action if it reasonably concludes, based on the advice of counsel, that there are defenses available to it which are different from or additional to those available to the Consolidated Entities, and (ii) neither the Consolidated Entities, on the one hand, nor the Escrow Agent, on the other hand, shall settle or compromise any such claim or action without the consent of the other, which consent shall not be unreasonably withheld or delayed.

LIABILITY AND COMPENSATION OF ESCROW AGENT. (a) 6.1 The Escrow Agent’s obligations and duties in connection herewith are confined to those specifically enumerated in this Escrow Agreement, which obligations and obligations of the Escrow Agent hereunder duties shall be determined solely by the express provisions of this Agreementdeemed purely ministerial, and no implied duties or obligations shall be read into this Agreement against the Escrow Agentnot fiduciary, in nature. The Escrow Agent shall, in determining its duties hereunder, shall not be under required to take notice of the Purchase Agreement and shall have no obligation duty or responsibility to refer to take any other documents between or among the parties related action pursuant thereto. The Escrow Agent shall not be in any way to this Agreement (except manner liable or responsible for the sufficiency, correctness, genuineness, or validity of any documents deposited with it or with reference to the extent that this Agreement specifically refers to form of execution thereof, or incorporates by reference provisions the identity, authority, or rights of any other documentPerson executing or depositing the same, including the Indemnity Agreement). The Consolidated Entities shall indemnify and hold the Escrow Agent harmless from and against shall not be liable for any and all liability and expense which loss that may arise out occur by reason of forgery, false representation, or the exercise of its discretion in any action taken particular manner or omitted by the Escrow Agentfor any other reason, except such liability and expense as may result from the for its own fraud, gross negligence or willful misconduct of the Escrow Agentmisconduct. The reasonable costs and expenses Escrow Agent shall not be required to act upon or take notice of any direction, demand, notice, communication or instructions provided to the Escrow Agent by any Seller, but shall act upon and take notice solely of notices, communications or instructions provided to enforce its indemnification rights under this Section 7(a) shall also be paid the Escrow Agent by the Consolidated EntitiesSeller Agent and Buyer as provided for herein. The Escrow Agent’s indemnification rights under this Section 7 Agent shall survive the termination of this Agreement and removal or resignation of the Escrow Agent. With have no liability with respect to the transfer or distribution of any claims or actions against funds effected by the Escrow Agent which are indemnified by the Consolidated Entities under this Section 7, the Consolidated Entities shall have the right pursuant to retain sole control over the defense, settlement, investigation and preparation related wiring or transfer instructions provided to such claims or actions; provided, that (i) the Escrow Agent may employ its own counsel by any party to defend such a claim or action if it reasonably concludes, based on this Escrow Agreement in accordance with the advice provisions of counsel, that there are defenses available to it which are different from or additional to those available to the Consolidated Entities, and (ii) neither the Consolidated Entities, on the one hand, nor the this Escrow Agent, on the other hand, shall settle or compromise any such claim or action without the consent of the other, which consent Agreement. The Escrow Agent shall not be unreasonably withheld obligated to take any legal action or delayedto commence any proceedings in connection with the Escrow Fund or this Escrow Agreement, or to appear in, prosecute or defend in any such legal action or proceedings.

LIABILITY AND COMPENSATION OF ESCROW AGENT. (a) The duties and obligations of the Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement, and no implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall, in determining its duties hereunder, be under no obligation to refer to any other documents between or among the parties related in any way to this Agreement (except to the extent that this Agreement specifically refers to or incorporates by reference provisions of any other document, including the Indemnity Agreement). The Consolidated Entities shall indemnify and hold the Escrow Agent harmless from and against any and all liability and expense which may arise out of any action taken or omitted by the Escrow Agent, except such liability and expense as may result from the gross negligence or willful misconduct of the Escrow Agent. The reasonable costs and expenses of the Escrow Agent to enforce its indemnification rights under this Section 7(a) shall also be paid by the Consolidated Entities. Notwithstanding the foregoing, in the event that any liability, cost or expense referred to in the preceding two sentences arises as a result of any actual or threatened complaint, suit, claim or other action brought by or on behalf of any Principal, any payments in respect of indemnification or expense or cost reimbursement therefore shall be satisfied first out of the Escrow Fund and, only if the amounts in the Escrow Fund are insufficient to satisfy such indemnification and reimbursement payments, thereafter by the Consolidated Entities. Any such indemnification or reimbursement payment from the Escrow Fund shall be made in accordance with the payment and allocation provisions of the Indemnity Agreement as if such payment were made in respect of an indemnification claim by an Indemnified Party; provided, however, that if any such payment would result in the distribution to the Escrow Agent of OP Units or REIT Shares, the Consolidated Entities shall, prior to such distribution, purchase from the Escrow Fund at the IPO Price such OP Units and/or REIT Shares as is necessary for the Escrow Fund to have sufficient cash to make such payment to the Escrow Agent solely in cash. None of the Consolidated Entities nor any other person or entity shall have any obligation to replace in the Escrow Fund any amounts paid therefrom to the Escrow Agent in accordance with this Section 7. The Escrow Agent’s 's indemnification rights under this Section 7 shall survive the termination of this Agreement and removal or resignation of the Escrow Agent. With respect to any claims or actions against the Escrow Agent which are indemnified by the Consolidated Entities under this Section 7, the Consolidated Entities shall have the right to retain sole control over the defense, settlement, investigation and preparation related to such claims or actions; provided, that (i) the Escrow Agent may employ its own counsel to defend such a claim or action if it reasonably concludes, based on the advice of counsel, that there are defenses available to it which are different from or additional to those available to the Consolidated EntitiesOperating Partnership, and (ii) neither the Consolidated Entities, on the one hand, nor Operating Partnership or the Escrow Agent, on the other hand, Agent shall settle or compromise any such claim or action without the consent of the other, which consent shall not be unreasonably withheld or delayed.

LIABILITY AND COMPENSATION OF ESCROW AGENT. (a) The duties and obligations of the Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement, and no implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall, in determining its duties hereunder, be under no obligation to refer to any other documents between or among the parties related in any way to this Agreement (except to the extent that this Agreement specifically refers to or incorporates by reference provisions of any other document, including the Indemnity Agreement). The Consolidated Entities shall indemnify and hold the Escrow Agent harmless from and against any and all liability and expense which may arise out of any action taken or omitted by the Escrow Agent, except such liability and expense as may result from the gross negligence or willful misconduct of the Escrow Agent. The reasonable costs and expenses of the Escrow Agent to enforce its indemnification rights under this Section 7(a) shall also be paid by the Consolidated Entities. The Escrow Agent’s indemnification rights under this Section 7 shall survive the termination of this Agreement and removal or resignation of the Escrow Agent. With respect to any claims or actions against the Escrow Agent which are indemnified by the Consolidated Entities under this Section 7, the Consolidated Entities shall have the right to retain sole control over the defense, settlement, investigation and preparation related to such claims or actions; provided, that (i) the Escrow Agent may employ its own counsel to defend such a claim or action if it reasonably concludes, based on the advice of counsel, that there are defenses available to it which are different from or additional to those available to the Consolidated EntitiesOperating Partnership, and (ii) neither the Consolidated Entities, on the one hand, Operating Partnership nor the Escrow Agent, on the other hand, Agent shall settle or compromise any such claim or action without the consent of the other, which consent shall not be unreasonably withheld or delayed.

LIABILITY AND COMPENSATION OF ESCROW AGENT. (a) Neither the Escrow Agent nor any of its directors, officers or employees shall be liable to anyone for any action taken or omitted to be taken by it or any of its directors, officers or employees hereunder except in the case of gross negligence, bad faith or willful misconduct. The Escrow Agent hereby acknowledges receipt of a copy of the Agreement, but except for references thereto for definitions of certain words and terms not defined herein, the Escrow Agent is not charged with any duty or obligation arising under the Agreement and the duties and obligations of the Escrow Agent hereunder shall be determined solely by the express provisions of this Escrow Agreement, and no implied duties or obligations shall be read into this Agreement against it being specifically understood that the Escrow Agent. The Escrow Agent shall, in determining its duties hereunder, be under no obligation to refer to any other documents between or among following provisions are accepted by all of the parties related in any way hereto. Each of the Stockholders and PSDI jointly and severally agree to this Agreement (except to the extent that this Agreement specifically refers to or incorporates by reference provisions of any other document, including the Indemnity Agreement). The Consolidated Entities shall indemnify and hold the Escrow Agent harmless from and against any and all liability and expense which may arise out of or in connection with this Escrow Agreement or with the administration of the Escrow Agent's duties hereunder, including, but not limited to, legal fees and expenses and other costs and expenses of defending or preparing to defend against any action taken claim of liability in the premises, unless such loss, liability or omitted expense shall be caused by the Escrow Agent's gross negligence, except such liability and expense as may result from the gross negligence bad faith or willful misconduct of the Escrow Agentmisconduct. The reasonable costs and expenses of In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages. Each of PSDI and the Stockholders, jointly and severally, agree to enforce its indemnification rights assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Amounts under this Section 7(a) shall also be paid by the Consolidated Entities. The Escrow Agent’s indemnification rights under this Section 7 shall survive the termination of this Agreement Agreement, and removal or resignation of to indemnify and hold the Escrow Agent. With respect to Agent harmless from and against any claims or actions taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent which are indemnified by the Consolidated Entities on any such payment or other activities under this Section 7Escrow Agreement. PSDI and the Stockholders' Representative undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Escrow Agreement. Each of PSDI and the Consolidated Entities shall have Stockholders, jointly and severally, agree to indemnify and hold the right Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to retain sole control over the defensewithhold or deduct same, settlementand any liability for failure to obtain proper certifications or to properly report to governmental authorities, investigation and preparation related to such claims or actions; provided, that (i) which the Escrow Agent may employ its own counsel to defend such a claim be or action if it reasonably concludesbecome subject in connection with or which arises out of this Escrow Agreement, based on the advice of counselincluding costs and expenses (including reasonable legal fees and expenses), that there are defenses available to it which are different from or additional to those available to the Consolidated Entities, interest and (ii) neither the Consolidated Entities, on the one hand, nor the Escrow Agent, on the other hand, shall settle or compromise any such claim or action without the consent of the other, which consent shall not be unreasonably withheld or delayedpenalties.

LIABILITY AND COMPENSATION OF ESCROW AGENT. (a) a. The duties and obligations of the Escrow Agent hereunder shall be determined solely by the express provisions of this Escrow Agreement, and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall, in determining its duties hereunder, be under no obligation to refer to any other documents between or among the parties related in any way to this Escrow Agreement (except to the extent that this Escrow Agreement specifically refers to or incorporates by reference provisions of any other document), including it being specifically understood that the Indemnity Agreement)following provisions are accepted by all of the parties hereto. The Consolidated Entities Parent shall indemnify and hold the Escrow Agent harmless from and against any and all liability and expense which may arise out of any action taken or omitted by the Escrow Agent, except such liability and expense as may result from the gross negligence or willful misconduct of the Escrow Agent. The reasonable costs and expenses of the Escrow Agent to enforce its indemnification rights under this Section 7(a10(a) shall also be paid by the Consolidated EntitiesParent. The Escrow Agent’s This right to indemnification rights under this Section 7 shall survive the termination of this Escrow Agreement and removal or resignation of the Escrow Agent. With respect to any claims or actions against the Escrow Agent which are indemnified by the Consolidated Entities Parent under this Section 710, the Consolidated Entities Parent shall have the right to retain sole control over the defense, settlement, investigation and preparation related to such claims or actions; provided, provided that (i) the Escrow Agent may employ its own counsel to defend such a claim or action if it reasonably concludes, based on the advice of counsel, that there are defenses available to it which are different from or additional to those available to the Consolidated Entities, Parent and (ii) neither the Consolidated Entities, on the one hand, Parent nor the Escrow Agent, on the other hand, Agent shall settle or compromise any such claim or action without the consent of the other, which consent shall not be unreasonably withheld or delayed.

LIABILITY AND COMPENSATION OF ESCROW AGENT. (a) The duties and obligations of the Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement, and no implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall, in determining its duties hereunder, be under no obligation to refer to any other documents between or among the parties related in any way to this Agreement (except to the extent that this Agreement specifically refers to or incorporates by reference provisions of any other document, including the Indemnity Agreement). The Consolidated Entities shall indemnify and hold the Escrow Agent harmless from and against any and all liability and expense which may arise out of any action taken or omitted by the Escrow Agent, except such liability and expense as may result from the gross negligence or willful misconduct of the Escrow Agent. The reasonable costs and expenses of the Escrow Agent to enforce its indemnification rights under this Section 7(a) shall also be paid by the Consolidated Entities. The Escrow Agent’s indemnification rights under this Section 7 shall survive the termination of this Agreement and removal or resignation of the Escrow Agent. With respect to any claims or actions against the Escrow Agent which are indemnified by the Consolidated Entities under this Section 7, the Consolidated Entities shall have the right to retain sole control over the defense, settlement, investigation and preparation related to such claims or actions; provided, that (i) the Escrow Agent may employ its own counsel to defend such a claim or action if it reasonably concludes, based on the advice of counsel, that there are defenses available to it which are different from or additional to those available to the Consolidated EntitiesDLC OP, and (ii) neither the Consolidated Entities, on the one hand, nor DLC OP or the Escrow Agent, on the other hand, Agent shall settle or compromise any such claim or action without the consent of the other, which consent shall not be unreasonably withheld or delayed.