Indemnification Escrow (a) The Escrow Deposit Amount, or from and after the Closing the Remaining Escrow Deposit Amount, shall (subject to the terms and conditions of Article 6) serve as and be the sole and exclusive source for payment of claims for indemnification by any Purchaser Indemnitee pursuant to Article 6. The Escrow Letter of Credit, which shall be provided at the Closing by Purchaser to the Escrow Agent in respect of the Escrow Deposit Amount, shall be held by the Escrow Agent in an account (the “Indemnity Escrow Account”) in accordance with the terms and conditions of an escrow agreement in the form attached hereto as Exhibit G (the “Escrow Agreement”). (b) On the date which is twelve (12) months following the Closing, the Escrow Agent shall pay and disburse to the Partnership, via a draw on the funds available under the Escrow Letter of Credit, the Initial Indemnity Release Amount calculated in accordance with Section 2.13, and the amount available to be drawn under the Escrow Letter of Credit and the aggregate principal amount of the Escrow Letter of Credit shall be reduced to reflect the foregoing draw and payment. (c) Notwithstanding anything in this Agreement or in the Escrow Agreement to the contrary, in the event that the Partnership is entitled, pursuant to this Agreement and the Escrow Agreement, to funds to be drawn from the Escrow Letter of Credit and the Escrow Agent is not able to draw all or any part of such funds from the Escrow Letter of Credit after receiving a notice (formatted as a joint written instruction) directing it to draw and release such funds, whether due to the expiration of the Escrow Letter of Credit, technical draw issues or otherwise, then, and in any such event, Purchaser shall deliver to the Partnership, by wire transfer of immediately available funds, not later than three (3) business days (with time of the essence) after a written request therefor from the Partnership, the amount of funds to which the Partnership is entitled or, if less than such amount, the remaining amount available to be drawn under the Escrow Letter of Credit, and the amount available to be drawn thereafter under the Escrow Letter of Credit (if not already equal to Zero) shall be reduced by the amount of such wire transfer. Without limiting the forgoing, any inability of the Escrow Agent to draw upon the Escrow Letter of Credit for any amount that is properly payable to the Partnership from the Escrow Letter of Credit or the Indemnity Escrow Account pursuant to this Agreement and the Escrow Agreement shall not relieve the Purchaser from its obligation to have made or to make such payment to the Partnership, and the Purchaser shall effect such payment by wire transfer in accordance with the preceding sentence. (d) If either Purchaser or the Partnership anticipates that there will be any funds remaining under the Escrow Letter of Credit as of the expiration date of the Escrow Letter of Credit (the “Escrow L/C Expiration”), then Purchaser shall use reasonable best efforts to obtain and deliver to the Escrow Agent, at least three (3) business days prior to the Escrow L/C Expiration, a replacement clean, irrevocable and unconditional standby letter of credit in the aggregate face amount equal to the amount of funds remaining under the Escrow Letter of Credit (i) in substantially the same form as the Escrow Letter of Credit or such other form as is reasonably acceptable to the Partnership and the Escrow Agent and (ii) from the then-current lender under the Escrow Letter of Credit or such other lender as is reasonably acceptable to the Partnership (the “Replacement Letter of Credit”). The Escrow Agreement shall provide that if the Escrow Agent has not received a Replacement Letter of Credit from Purchaser and written notice from the Partnership that the Replacement Letter of Credit satisfies the requirements of this Section 2.12(d) at least six (6) business days prior to the Escrow L/C Expiration, then prior to the close of business on the third (3rd) business day prior to the Escrow L/C Expiration (with time of the essence), the Escrow Agent shall draw all funds remaining under the Escrow Letter of Credit and hold such funds in the Indemnity Escrow Account for release pursuant to the applicable provisions of the Escrow Agreement (a “Full Draw Event”). Following the expiration of the Escrow Letter of Credit, all references in this Agreement and the Escrow Agreement to the Escrow Letter of Credit shall be deemed to refer to the Replacement Letter of Credit (and any subsequent replacement standby letter of credit that complies with this Section 2.12(d)), and this Section 2.12(d) shall apply to the Replacement Letter of Credit mutatis mutandis. (e) The Parties agree that the Escrow Agreement shall treat the Escrow Letter of Credit and any funds held in the Indemnity Escrow Account as owned by the Partnership for U.S. federal income tax purposes.
Exculpation and Indemnification of Escrow Agent 9.1. The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person's obligations under such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the subscribers relating to the Escrow Account, the Escrow Agent, as applicable, shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof. 9.2. The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent, as applicable, to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent, as applicable, signed by the proper party or parties and, if the duties or rights of the Escrow Agent, as applicable, are affected, unless it shall give its prior written consent thereto. 9.3. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property pursuant to the provisions of this Agreement. Except as specifically provided for herein, the Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent, as applicable, has complied with the provisions of Section 2 hereunder. 9.4. The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent, as applicable, does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such assumption. 9.5. To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder, the Escrow Agent, as applicable, may pay such taxes. The Escrow Agent, as applicable, may withhold from any payment of monies held by it hereunder such amount as the Escrow Agent, as applicable, estimates to be sufficient to provide for the payment of such taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for taxes and for any penalties or interest in respect of taxes, on such investment income or payments in the manner provided in Section 9.6. 9.6. The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent, as applicable, in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent, as applicable, hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies; provided, that such expenses or loss are not as a result of the Escrow Agent, as applicable, acting, or omitting to take action, in bad faith or with willful misconduct or gross negligence promptly after the receipt by the Escrow Agent, as applicable, of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, as applicable, shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent, as applicable, to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder. For the purposes hereof, the term "expense or loss" shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claims, demand, action, suit or proceeding.
Indemnification of Escrow Agent From and at all times after the date of this Agreement, the parties jointly and severally, shall, to the fullest extent permitted by law and to the extent provided herein, indemnify and hold harmless Escrow Agent and each director, officer, employee, attorney, agent and affiliate of Escrow Agent (collectively, the "Indemnified Parties") against any and all actions, claims (whether or not valid), losses, damages, liabilities, costs and expenses of any kind or nature whatsoever (including without limitation reasonable attorney's fees, costs and expenses) incurred by or asserted against any of the Indemnified Parties from and after the date hereof, whether direct, indirect or consequential, as a result of or arising from or in any way relating to any claim, demand, suit, action, or proceeding (including any inquiry or investigation) by any person, including without limitation the parties to this Agreement, whether threatened or initiated, asserting a claim for any legal or equitable remedy against any person under any statute or regulation, including, but not limited to, any federal or state securities laws, or under any common law or equitable cause or otherwise, arising from or in connection with the negotiation, preparation, execution, performance or failure of performance of this Agreement or any transaction contemplated herein, whether or not any such Indemnified Party is a party to any such action or proceeding, suit or the target of any such inquiry or investigation; provided, however, that no Indemnified Party shall have the right to be indemnified hereunder for liability finally determined by a court of competent jurisdiction, subject to no further appeal, to have resulted solely from the gross negligence or willful misconduct of such Indemnified Party. If any such action or claim shall be brought or asserted against any Indemnified Party, such Indemnified Party shall promptly notify the Company and the Investor hereunder in writing, and the and the Company shall assume the defense thereof, including the employment of counsel and the payment of all expenses. Such Indemnified Party shall, in its sole discretion, have the right to employ separate counsel (who may be selected by such Indemnified Party in its sole discretion) in any such action and to participate and to participate in the defense thereof, and the fees and expenses of such counsel shall be paid by such Indemnified Party, except that the Investor and/or the Company shall be required to pay such fees and expense if (a) the Investor or the Company agree to pay such fees and expenses, or (b) the Investor and/or the Company shall fail to assume the defense of such action or proceeding or shall fail, in the sole discretion of such Indemnified Party, to employ counsel reasonably satisfactory to the Indemnified Party in any such action or proceeding, (c) the Investor and the Company are the plaintiff in any such action or proceeding or (d) the named or potential parties to any such action or proceeding (including any potentially impleaded parties) include both Indemnified Party the Company and/or the Investor and Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company or the Investor. The Investor and the Company shall be jointly and severally liable to pay fees and expenses of counsel pursuant to the preceding sentence, except that any obligation to pay under clause (a) shall apply only to the party so agreeing. All such fees and expenses payable by the Company and/or the Investor pursuant to the foregoing sentence shall be paid from time to time as incurred, both in advance of and after the final disposition of such action or claim. The obligations of the parties under this section shall survive any termination of this Agreement, and resignation or removal of the Escrow Agent shall be independent of any obligation of Escrow Agent.
Escrow and Indemnification 50 8.1 Survival of Representations, Warranties and Covenants...........50 8.2 Indemnity.......................................................50 8.3
Indemnification of the Escrow Agent In consideration of the benefits to be derived by Seller from the Split-Off Escrow Agreement, as a third-party beneficiary under the Split-Off Escrow Agreement, Seller shall, from and at all times after the date of the Split-Off Escrow Agreement, indemnify and hold harmless the Escrow Agent and each partner, director, officer, employee, attorney, agent and affiliate of Escrow Agent (collectively, the “Indemnified Parties”), to the fullest extent permitted by law and to the extent provided herein, against any and all actions, claims (whether or not valid), losses, damages, liabilities, costs and expenses of any kind or nature whatsoever (including without limitation reasonable attorney’s fees, costs and expenses) incurred by or asserted against any of the Indemnified Parties from and after the date hereof, whether direct, indirect or consequential, as a result of or arising from or in any way relating to any claim, demand, suit, action, or proceeding (including any inquiry or investigation) by any person, including without limitation the parties to the Split-Off Escrow Agreement, whether threatened or initiated, asserting a claim for any legal or equitable remedy against any person under any statute or regulation, including, but not limited to, any federal or state securities laws, or under any common law or equitable cause or otherwise, arising from or in connection with the negotiation, preparation, execution, performance or failure of performance of the Split-Off Escrow Agreement or any transaction contemplated herein, whether or not any such Indemnified Party is a party to any such action or proceeding, suit or the target of any such inquiry or investigation; provided, however, that no Indemnified Party shall have the right to be indemnified hereunder for liability finally determined by a court of competent jurisdiction, subject to no further appeal, to have resulted from the gross negligence or willful misconduct of such Indemnified Party. The obligations of the parties under this section shall survive any termination of this Agreement.
Buyer Indemnification Buyer agrees to indemnify and hold Seller harmless from any and all claims, damages and liabilities arising from Buyer' breach of their representations and warranties set forth in this Agreement.
Indemnification Matters The Company hereby acknowledges that one (1) or more of the directors nominated to serve on the Board of Directors by the Investors (each a “Fund Director”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by one or more of the Investors and certain of their affiliates (collectively, the “Fund Indemnitors”). The Company hereby agrees (a) that it is the indemnitor of first resort (i.e., its obligations to any such Fund Director are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Fund Director are secondary), (b) that it shall be required to advance the full amount of expenses incurred by such Fund Director and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement by or on behalf of any such Fund Director to the extent legally permitted and as required by the Company’s Certificate of Incorporation or Bylaws of the Company (or any agreement between the Company and such Fund Director), without regard to any rights such Fund Director may have against the Fund Indemnitors, and, (c) that it irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Fund Indemnitors on behalf of any such Fund Director with respect to any claim for which such Fund Director has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Fund Director against the Company.
Seller’s Indemnification Except as otherwise stated in this Agreement, after recording, the Buyer shall accept the Property AS IS, WHERE IS, with all defects, latent or otherwise. Neither Seller nor their licensed real estate agent(s) or any other agent(s) of the Seller, shall be bound to any representation or warranty of any kind relating in any way to the Property or its condition, quality or quantity, except as specifically set forth in this Agreement or any property disclosure, which contains representations of the Seller only, and which is based upon the best of the Seller’s personal knowledge.
Indemnity Escrow (i) At or prior to the Closing, Pubco, the Seller Representative and American Stock Transfer & Trust Company (or such other escrow agent mutually acceptable to Purchaser and the Company), as escrow agent (the “Escrow Agent”), shall enter into an Escrow Agreement, effective as of the Effective Time, in form and substance reasonably satisfactory to Purchaser and the Company (the “Escrow Agreement”), pursuant to which Pubco shall cause to be delivered to the Escrow Agent a number of Class B Exchange Shares (each valued at the Redemption Price) equal to (x) fifteen percent (15%) of the estimated Exchange Consideration, divided by (y) the Redemption Price otherwise issuable to the Sellers at the Closing based on the Estimated Closing Statement (such Class B Exchange Shares, together with any equity securities paid as dividends or distributions with respect to such shares or into which such shares are exchanged or converted, in each case, as long as they remain in the Indemnity Escrow Account, the “Indemnity Escrow Shares”) to be held, along with any other dividends, distributions or other income on the Indemnity Escrow Shares, in each case, as long as they remain in the Indemnity Escrow Account (together with the Indemnity Escrow Shares, the “Indemnity Escrow Property”), in a segregated escrow account (the “Indemnity Escrow Account”) and disbursed in accordance with the terms of this Agreement and the Escrow Agreement. The portion of the Class B Exchange Shares that shall be withheld at the Closing for deposit in the Indemnity Escrow Account, and any disbursement from the Indemnity Escrow Account to Pubco, shall be allocated between the Class B Sellers based on each such Seller’s relative Pro Rata Share (as between themselves). The Indemnity Escrow Shares shall serve as the sole and exclusive source of payment of the obligations of the Sellers under Section 2.5(d) and the obligations of the Indemnitors pursuant to Article IX (other than with respect to (A) Fraud Claims or (B) any indemnification claims for breach of any Company and Seller Fundamental Representations, for which the Main Seller shall be solely responsible). Unless otherwise required by Law, all distributions made from the Indemnity Escrow Account shall be treated by the Parties as an adjustment to the Exchange Consideration received by the Sellers pursuant to Article II hereof. Each Class B Seller shall be deemed to be the owner of such Seller’s relative Pro Rata Share (as between themselves) of the Indemnity Escrow Shares during the time such Indemnity Escrow Shares are held in the Indemnity Escrow Account, subject to the retention of any dividends, distributions and other earnings thereon in the Indemnity Escrow Account until disbursed therefrom in accordance with the terms and conditions of this Agreement and the Escrow Agreement. Each Class B Seller shall have the right to vote such Seller’s relative Pro Rata Share (as between themselves) of the Indemnity Escrow Shares (together with any equity securities paid as dividends or distributions with respect to such shares or into which such shares are exchanged or converted) during the time held in the Indemnity Escrow Account as Indemnity Escrow Shares. (ii) (A) Within three (3) Business Days after the twelve (12) month anniversary of the Closing Date (such anniversary, the “First Escrow Release Date”), the Purchaser Representative and Seller Representatives shall give joint written instruction to the Escrow Agent directing the release of the First Released Escrow Property (if any) to the Class B Sellers; (B) within three (3) Business Days after the twenty-four (24) month anniversary (such anniversary, the “Expiration Date”), the Purchaser Representative and Seller Representatives shall give joint written instruction to the Escrow Agent directing the release of all remaining Indemnity Escrow Property (if any) to the Class B Sellers; and (C) the Indemnity Escrow Property shall not be subject to any indemnification claim to the extent such claim is made after the Expiration Date; provided, however, with respect to any indemnification claim made in accordance with Article IX hereof on or prior to the Expiration Date that remains unresolved at the time and are still contested by an Indemnitee in good faith as of the Expiration Date (any such claim, a “Pending Claim”), an amount of the Indemnity Escrow Property with a value (with respect to the Indemnity Escrow Shares, calculated based on the Pubco Share Price as of the Expiration Date) equal to the aggregate amount of the Pending Claims set forth in the Claim Notice provided by the Purchaser Representative in accordance with Section 9.4 (as adjusted in accordance with Section 9.4(b)) shall remain in the Indemnity Escrow Account until such time as such Pending Claim shall have been finally resolved and paid pursuant to the provisions of Article IX. After the Expiration Date, to the extent that the value of the remaining Indemnity Escrow Property (with respect to the Indemnity Escrow Shares, calculated based on the Pubco Share Price) exceeds the aggregate amount of (a) resolved but unpaid claims in favor of an Indemnitee and (b) the Pending Claims set forth in the Claim Notice (as adjusted in accordance with Section 9.4(b)) submitted prior to the Expiration Date, an amount of Indemnity Escrow Property having a value (with respect to the Indemnity Escrow Shares, calculated based on the Pubco Share Price) equal to such excess shall be promptly (and no later than three (3) Business Days) disbursed by the Escrow Agent to the Class B Sellers (and Purchaser Representative and Seller Representatives shall promptly give joint written instructions to the Escrow Agent directing such release), with respect to each release of the Indemnity Escrow Property to the Class B Sellers, each such Seller shall receive such Seller’s relative Pro Rata Share (as between themselves) of such Indemnity Escrow Property. Promptly after the final resolution of all Pending Claims and payment of all indemnification obligations in connection therewith, the Escrow Agent shall transfer any Indemnity Escrow Property remaining in the Indemnity Escrow Account to the Class B Sellers with each such Seller receiving such Seller’s relative Pro Rata Share (as between themselves) of such Indemnity Escrow Property.
Purchaser’s Indemnification Purchaser agrees to indemnify, hold harmless, reimburse and defend the Company and each of the Company's officers, directors, agents, affiliates, control persons and principal shareholders, at all times against any claim, cost, expense, liability, obligation, loss or damage (including reasonable legal fees) of any nature, incurred by or imposed upon the Company which results, arises out of or is based upon: (i) any misrepresentation by Purchaser or breach of any warranty by Purchaser in this Agreement or in any exhibits or schedules attached hereto or any Related Agreement; or (ii) any breach or default in performance by Purchaser of any covenant or undertaking to be performed by Purchaser hereunder, or any other agreement entered into by the Company and Purchaser relating hereto.
