INDEMNITY AGREEMENT AND RELEASE
EXHIBIT
10.10
INDEMNITY
AGREEMENT AND RELEASE
THIS
AGREEMENT is made and entered into this ___ day of December, 2007, by and among
COMVEST INVESTMENT PARTNERS III, L.P., EVCI CAREER COLLEGES HOLDINGS CORP.,
INTERBORO INSTITUTE, INC., INTERBORO HOLDING, INC., PENNSYLVANIA SCHOOL OF
BUSINESS, INC., and TECHNICAL CAREER INSTITUTES, INC. (each of the foregoing
a
"Releasor"
and
collectively, the "Releasors")
and
XXXXXX X.X. ("Xxxxxx").
RECITALS:
To
induce
Xxxxxx to enter into a certain Sale and Assignment of Loan Documents between
Xxxxxx and Comvest Investment Partners III, L.P. dated as of the date hereof
(the "Sale
Agreement"),
Xxxxxx has required that each Releasor execute and deliver this Indemnity
Agreement and Release. All terms capitalized but not defined herein shall have
the meanings given to such terms in the Sale Agreement.
In
consideration of good and valuable considerations, the receipt and sufficiency
of which is acknowledged by each Releasor, subject to and effective upon the
satisfaction of the conditions precedent in the Sale Agreement, each Releasor
hereby agrees as follows:
1. Indemnity.
Releasors jointly and severally hereby assume, agree to pay, indemnify and
defend and hold harmless Xxxxxx and its parent corporation, affiliates,
subsidiaries, successors, assigns, officers, directors, shareholders, employees,
advisors, attorneys and agents (collectively, "Indemnitee"),
from
and against any and all claims, actions, causes of action, liabilities,
penalties, fines, damages, judgments, losses, suits, expenses, legal or
administrative proceedings, interest, costs and expenses (including court costs
and attorneys', consultants' and experts' fees) whether foreseeable or
unforeseeable, arising out of or in any way relating to the Purchased Documents,
the loans evidenced thereby, the Releasors, or any of them, or the Sale
Agreement and any claims, actions, causes of action, liabilities, penalties,
fines, damages, judgments, losses, suits, expenses, legal or administrative
proceedings, interest, costs and expenses by third parties not a party hereto
against Xxxxxx for actions of Xxxxxx with respect to such third parties, in
each
case solely to the extent (a) arising out of any of the matters described above
in this paragraph 1 and (b) not arising directly from the willful misconduct
of
Xxxxxx as determined by the final judgment of a court of competent jurisdiction.
Releasor shall have the right to control any action or claim, including an
action for which indemnity is required herein, through knowledgeable and
experienced counsel of its choice, subject to the consent of Xxxxxx, which
shall
not be unreasonably withheld or delayed. If Releasor fails to undertake the
control of any such action, and Xxxxxx notifies Releasor in writing of Xxxxxx'
intent to control such action within thirty (30) days (or five (5) days less
than such lesser time as may be required to respond to such claims) of
Releasor's notice of such claims to Xxxxxx, Xxxxxx shall have the right to
undertake the control, conduct or settlement of such claims through its own
knowledgeable and experienced counsel at Releasor's sole cost and expense.
Xxxxxx represents that, on the date hereof, it has no knowledge
of any valid basis by any third party for any claim for which indemnification
could be sought hereunder.
2. Notices.
Xxxxxx
will give Releasor notice within a reasonable time after receiving a written
demand, service of a pleading, court document or other written communication
threatening to require or demanding payment from or asserting a claim against
any Indemnitee. Upon request, any party shall furnish any other party with
such
information and cooperation as Xxxxxx and Releasor may reasonably require
including but not limited to the furnishing of copies of relevant correspondence
and pleadings.
3. Settlements.
Any
settlement offer made to a party to this Agreement and arising out of any matter
which is the subject of this Agreement shall be communicated to the other party
within five days of the receipt thereof. Releasor shall be obligated to discuss
and consult with Xxxxxx as to Xxxxxx' position concerning any proposed
settlement. Xxxxxx shall not settle any claim without Releasor's consent,
provided
however that,
if a
Releasor fails to respond to any settlement proposal within ten (10) business
days of written notice of such proposal, such Releasor shall be deemed to have
consented to such proposal.
4. Payments.
Releasor will pay to Xxxxxx within ten (10) days of the date such payment is
due
the amount of any such claim in cash or certified funds, provided
however that
nothing
contained herein shall limit Releasor's right to appeal (and to defer payment
pending such appeal) provided such appeal or bond filed in connection therewith
suspends the right of any party to collect such claim. Any payment not received
on the date such payment is due to Xxxxxx shall accrue interest at the lower
of
18% per annum or the maximum rate allowed by law until paid and such interest
shall be due upon written demand. To the extent of any payments made to Xxxxxx
hereunder, Releasor shall be subrogated to Xxxxxx' rights of recovery to any
third party that may be liable and Indemnitee shall do everything reasonably
necessary to assign such rights to Releasor.
To the extent of any payments made by a
Releasor
to Xxxxxx or any other Indemnitee hereunder, such
Releasor shall be subrogated to Xxxxxx' or such Indemnitee's rights of recovery
against any third party that may be liable, and Xxxxxx or such Indemnitee shall
do everything reasonably necessary to assign such rights to such
Releasor.
5. Release.
Except
as otherwise expressly provided in the Sale Agreement, each Releasor, acting
on
behalf of themselves and any affiliated entities, all predecessors, successors
and assigns, and all past present partners, agents, attorneys, servants and
employees, hereby release, remise and forever discharge Indemnitee, and each
of
them, separately and collectively, of all claims, demands causes of action,
obligations and liabilities, known or unknown, accrued or unaccrued, suspected
or unsuspected, for any compensatory, punitive, treble or other damages, that
the Releasors have, had or may have had or in the future may have as a result
of
or arising in connection with or relating to the Purchased Documents, the loans
evidenced thereby, the Releasors, or any of them, or the Sale
Agreement.
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6. Amendments.
No
modifications, amendments or changes in this Agreement shall be effective or
binding upon the parties unless the same have been agreed to in writing by
each
of them.
7. Addresses.
All
notices or other communications to be given hereunder shall be in writing,
hand
delivered and receipted or sent by certified U.S. Mail with postage prepaid,
return receipt requested, to the addressee at its address set forth on the
signature pages hereof or as may be designated by subsequent notice.
8. Severability.
If any
provision or portion of this Agreement is found by a court of competent
jurisdiction or other authorized body to be unenforceable or null and void,
such
provision shall be deemed stricken and severed from this Agreement and the
remaining provisions and portions hereof shall continue in full force and
effect. If any coverage or indemnity hereunder is found to exceed the maximum
permissible indemnity allowed by law, it shall not be stricken, but shall be
reduced to conform to the broadest possible coverage and indemnity permitted
by
law. This indemnity and release and the stipulations herein contained will
apply
to and bind the successors and assigns of the respective parties.
9. Not
Assignable.
This
Agreement is made for the benefit of Xxxxxx and to be expressly enforceable
against Releasors jointly and severally. This Agreement may not be assigned,
transferred, hypothecated or pledged by any party hereto.
10. Counterparts. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
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IN
WITNESS WHEREOF, each party hereto has caused this Agreement to be executed
as
and of the date and year first set forth above.
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By:
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/s/
Xx. Xxxx X. XxXxxxx
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Name:
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Xx.
Xxxx X. XxXxxxx
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Title:
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Chief
Executive Officer and President
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Address:
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0
Xxx Xxx Xxxxx Xxxxxx
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Xxxxxxx,
Xxx Xxxx 00000
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Attention:
Xx. Xxxx X. XxXxxxx, CEO and
President
and Xxxxxx X. Xxxxxxx, General Counsel
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Telephone:
(000) 000-0000
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Telecopy:
(000) 000-0000
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Interboro
Institute, Inc.
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By:
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/s/
Xx. Xxxx X. XxXxxxx
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Name:
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Xx.
Xxxx X. XxXxxxx
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Title:
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Chief
Executive Officer
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Address:
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0
Xxx Xxx Xxxxx Xxxxxx
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Xxxxxxx,
Xxx Xxxx 00000
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Attention:
Xx. Xxxx X. XxXxxxx, CEO and President and Xxxxxx X. Xxxxxxx, General
Counsel
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Telephone:
(000) 000-0000
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Telecopy:
(000) 000-0000
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Interboro
Holding, Inc.
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By:
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/s/
Xx. Xxxx X. XxXxxxx
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Name:
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Xx.
Xxxx X. XxXxxxx
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Title:
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President
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Address:
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0
Xxx Xxx Xxxxx Xxxxxx
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Xxxxxxx,
Xxx Xxxx 00000
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Attention:
Xx. Xxxx X. XxXxxxx, CEO and
President
and Xxxxxx X. Xxxxxxx, General Counsel
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Telephone:
(000) 000-0000
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Telecopy:
(000) 000-0000
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Pennsylvania
School of Business, Inc.
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By:
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/s/
Xx. Xxxx X. XxXxxxx
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Name:
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Xx.
Xxxx X. XxXxxxx
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Title:
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Chief
Executive Officer and President
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Address:
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0
Xxx Xxx Xxxxx Xxxxxx
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Xxxxxxx,
Xxx Xxxx 00000
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Attention:Xx.
Xxxx X. XxXxxxx, CEO and
President
and Xxxxxx X. Xxxxxxx, General Counsel
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Telephone:
(000) 000-0000
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Telecopy:(000)
000-0000
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Technical
Career Institutes, Inc.
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By:
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/s/
Xx. Xxxx X. XxXxxxx
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Name:
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Xx.
Xxxx X. XxXxxxx
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Title:
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Chairman
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Address:
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Xxx Xxx Xxxxx Xxxxxx
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Xxxxxxx,
Xxx Xxxx 00000
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Attention:Xx.
Xxxx X. XxXxxxx, CEO and
President
and Xxxxxx X. Xxxxxxx, General Counsel
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Telephone:
(000) 000-0000
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Telecopy:
(000) 000-0000
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Xxxxxx
X.X.
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By:
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/s/
X. Xxxxx
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Name:
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X.
Xxxxx
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Title:
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Vice
President
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Address:
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Xxxxxx
X.X.
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000
Xxxxx XxXxxxx Xxxxxx
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Xxxxx
00-X
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Xxxxxxx,
Xxxxxxxx 00000
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Attention:
Xxxxxx Xxxx-Xxxxxxx
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With
a copy to:
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Xxxxxx
X.X.
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000
Xxxxxxxxx Xxxxxx
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Xxxxx
0000
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Xxxxxxx,
Xxxxx 00000
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Attention:
Xxxxxx X. XxXxxx / Xxxx Xxx Xxxxx
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Telephone:
(000) 000-0000 / (000) 000-0000
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Fax
No.: (000) 000-0000
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Email:
xxxxxx.xxxxxx@xxx.xxx /
xxxx.xxxxx@xxx.xxx
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With
a copy to:
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Drinker
Xxxxxx & Xxxxx LLP
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000
Xxxxxxx Xxxx Xxxx
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Xxxxxxxxx,
XX 00000
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Attention:
Xxxxxx X. Xxxxx
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Telephone:
(000) 000-0000
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Fax
No.: (000) 000-0000
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Email:
Xxxxxx.xxxxx@xxx.xxx
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6
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COMVEST
INVESTMENT PARTNERS III, L.P.
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By:
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ComVest
III Partners, LLC, its General Partner
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By:
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ComVest
Advisors LLC, its Managing Member
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By:
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/s/
Xxxxx X. Xxxxx, Xx.
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Name:
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Xxxxx X. Xxxxx, Xx. | ||
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Title:
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Authorized
Signatory
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Address:
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Comvest
Investment Partners III, L.P.
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Xxx
Xxxxx Xxxxxxxx-Xxxxx 000
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Xxxx
Xxxx Xxxxx, XX 00000
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Attention:
Mr. Xxxxxxx Xxxx
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Telephone:
(000) 000-0000
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Email:
xxxxxxxx@xxxxxxx.xxx
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With
a copy to: Xxxxxxxxx Xxxxxxx, LLP
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The
MetLife Building
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000
Xxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Attention:
Xxxx X. Annex, Esq.
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Telephone:
(000) 000-0000
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Fax
No.: (000) 000-0000
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Email:
xxxxxx@xxxxx.xxx
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