INDEMNIFICATION AND ESCROW AGREEMENT
TABLE OF
CONTENTS
Exhibit
10.3
THIS INDEMNIFICATION AND ESCROW
AGREEMENT (“ Agreement ”) is made and
entered into as of October 29, 2009, by and among Secure America
Acquisition Corporation, a Delaware corporation (“ Secure ”), Ultimate Escapes
Holdings, LLC, a Delaware limited liability company (the “ Company ”), Xxxxx Xxxxxxxxxx,
an individual residing in Orlando, Florida, in his capacity as a representative
for the Initial Members (as defined below) of the Company (the “ Member Representative ”), and
SunTrust Banks, a Georgia corporation
(hereinafter referred to as the “ Escrow Agent ”).
WHEREAS,
Secure, Ultimate Resort Holdings, LLC, a Delaware limited liability company, the
Company, and the Member Representative are parties to a Contribution Agreement
dated as of September 2, 2009 (the “ Contribution Agreement ”),
pursuant to which Secure has agreed to contribute a minimum of $20,000,000 to
the Company in return for membership interests in the Company. Capitalized terms
used herein that are not otherwise defined herein shall have the meanings
ascribed to them in the Contribution Agreement;
WHEREAS,
Secure, the Company and the Members of the Company immediately prior to Secure’s
contribution to the Company (the “ Initial Members ”), have
entered into an operating agreement dated as of the date hereof (the “Operating Agreement ”);
and
WHEREAS,
in connection with the Contribution Agreement and the Operating Agreement, the
parties desire to establish an escrow fund as partial collateral security for
the indemnification obligations of the Initial Members under the Contribution
Agreement and in connection with the Earn-Out Payments set forth in the
Operating Agreement.
NOW,
THEREFORE, the parties agree as follows:
1.
Survival of Representations,
Warranties and Covenants; Indemnification.
(a) Survival. The
covenants, agreements and representations and warranties of a Party made in or
pursuant to the Contribution Agreement shall survive the Closing until the
earlier of (i) the fifteenth (15th) day after the date Secure has filed with the
Securities and Exchange Commission (the “ SEC ”) its Annual Report on
Form 10-K for the year ending December 31, 2010 or (ii) April 15, 2011 (the “
Survival Period ”);
provided, however, that
the representations and warranties set forth in Sections 2.17, 2.21, 3.10, and
3.24 of the Contribution Agreement will survive until the expiration of the
applicable statutes of limitation for claims thereunder; and provided, further, that the
representations and warranties contained in Sections 2.1, 2.2, 2.3, 2.4, 3.1,
3.2, and 3.3 of the Contribution Agreement (the “Fundamental Representations”
) shall survive for six (6) years after the Effective Time. Notwithstanding the
foregoing, any representation or warranty the violation of which is made the
basis of a claim for indemnification hereunder will survive until such claim is
finally resolved if the Indemnified Representative (as such term is hereafter
defined) notifies in writing the Indemnifying Representative of such claim in
reasonable detail prior to the expiration of the applicable survival period of
such claim in accordance with this Section 1(a).
(b)
Indemnification by the Initial
Members.
(i)
Subject to the terms and conditions of this Section 1, each Initial Member shall
severally indemnify and hold harmless each of Secure, its affiliates and each of
their respective successors and permitted assigns, and their respective
officers, directors, employees and agents (each, a “ Secure Indemnified Party ”)
from and against any liabilities, claims (including claims by third parties),
demands, judgments, losses, costs, damages or expenses whatsoever (including
reasonable attorneys’, consultants’ and other professional fees and
disbursements of every kind, nature and description) (collectively, “ Damages ”) that such Secure
Indemnified Party may sustain, suffer or incur and that result from, arise out
of or relate to (i) any breach by any Initial Member of any of the
representations, warranties, or covenants or agreements made by the Company, any
Company Subsidiary or an Initial Member contained in the Contribution Agreement
and/or (ii) any fraud or intentional misconduct committed by the Company, any
Company Subsidiary or any Initial Member relating to the Contribution
Agreement.
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(c) Indemnification by Secure
.. Secure shall indemnify and hold harmless the Company, the Initial
Members, their affiliates and each of their respective successors, heirs,
estate, permitted assigns, managers, officers, directors, employees and agents
(each, a “ Company Indemnified
Party ”) from and against any Damages that such Company Indemnified Party
may sustain, suffer or incur and that result from, arise out of or relate to (i)
any breach by Secure of any of its representations, warranties, or covenants or
agreements contained in the Contribution Agreement and/or (ii) any fraud or
intentional misconduct committed by Secure relating to the Contribution
Agreement.
(d) Indemnification of Third Party
Claims . The indemnification obligations and liabilities under
this Section 1 with
respect to Actions brought against a Secure Indemnified Party or a Company
Indemnified Party (each in such capacity, an “ Indemnitee ”) by a Person
other than a Party hereto (a “ Third Party Claim ”) shall be
subject to the following terms and conditions (for purposes of this Agreement,
the “ Indemnified
Representative ” means Secure, with respect to an indemnification claim
by a Secure Indemnified Party, and the Member Representative, with respect to an
indemnification claim by a Company Indemnified Party, and the “ Indemnifying Representative ”
means the Member Representative, with respect to an indemnification claim by a
Secure Indemnified Party, and Secure, with respect to an indemnification claim
by a Company Indemnified Party):
(i) The
Indemnified Representative will give the Indemnifying Representative written
notice as soon as practical after receiving written notice of any Third Party
Claim or becoming aware of any condition or event that gives rise to such Third
Party Claim, specifying the nature and the amount (the “ Claim Notice ”). The failure
of the Indemnified Representative to give timely notice shall not affect the
Indemnified Representative’s rights to indemnification hereunder except to the
extent that the Indemnifying Representative demonstrates that it was prejudiced
by such failure.
(ii) The
Indemnifying Representative shall notify the Indemnified Representative within
fifteen (15) days after receipt of the Claim Notice whether the Indemnifying
Representative will undertake, conduct, and control, through counsel of its own
choosing (subject to the consent of Indemnified Representative, such consent not
to be unreasonably withheld, conditioned or delayed) and at its expense, the
settlement or defense thereof, and the Indemnified Representative shall
cooperate with the Indemnifying Representative in connection therewith, provided
that if the Indemnifying Representative undertakes such defense: (A) the
Indemnifying Representative shall not thereby permit to exist any Encumbrance or
other adverse charge upon any asset of Indemnified Representative or settle such
action without first obtaining the consent of Indemnified Representative, except
for settlements solely covering monetary matters for which Indemnifying
Representative has acknowledged responsibility for payment; (B) the Indemnifying
Representative shall permit the Indemnified Representative (at the Indemnified
Representative’s sole cost and expense) to participate in such settlement or
defense through counsel chosen by the Indemnified Representative; and (C) the
Indemnifying Representative shall agree promptly to reimburse the Indemnified
Representative for the full amount of any loss resulting from such claim and all
related expenses incurred by the Indemnified Representative, except for those
costs expressly assumed by the Indemnified Representative hereunder. The
Indemnified Representative agrees to preserve and provide access to all evidence
that may be useful in defending against such claim and to provide reasonable
cooperation in the defense thereof or in the prosecution of any action against a
third Person in connection therewith. The Indemnifying Representative’s defense
of any claim or demand shall not constitute an admission or concession of
liability therefor or otherwise operate in derogation of any rights Indemnifying
Representative may have against Indemnified Representative or any third Person.
So long as the Indemnifying Representative is reasonably contesting any such
claim in good faith, the Indemnified Representative shall not pay or settle any
such claim. If the Indemnifying Representative does not notify the Indemnified
Representative within fifteen (15) days after receipt of Indemnified
Representative’s Claim Notice that it elects to undertake the defense thereof,
the Indemnified Representative shall (upon further written notice), subject to
the limitations set forth in Section 1(a), have the right to contest, settle or
compromise the claim in the exercise of its exclusive discretion at the expense
of the Indemnifying Representative (provided that the Indemnifying
Representative shall not be required to pay the Indemnified Representative’s
expenses for the defense, settlement or compromise of claims which are not
covered by the Indemnifying Representative’s obligations pursuant to this
Section 1). Unless the Indemnifying Representative has consented to a settlement
of a Third Party Claim (not to be unreasonably withheld, conditioned or
delayed), the amount of the settlement shall not be a binding determination of
the amount of the Damages and such amount shall be determined in accordance with
the provisions of this Agreement. Notwithstanding anything herein to the
contrary, the Indemnifying Representative shall not be entitled to assume
control of any defense described herein if (i) the Third Party Claim relates to
or arises in connection with any criminal proceeding, action, indictment,
allegation or investigation or (ii) there is a reasonable probability that a
Third Party Claim may materially and adversely affect the Indemnitee other than
as a result of money damages or other money payments.
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(iii) To
the extent that any Damages that are subject to indemnification pursuant to this
Section 1 are covered by insurance, the Indemnitees shall use commercially
reasonable efforts to obtain the maximum recovery under such insurance. If an
Indemnitee has received the payment required by this Agreement from the
Indemnifying Representative in respect of any Damages and later receives
proceeds from insurance or other amounts in respect of such Damages, then it
shall hold such proceeds or other amounts in trust for the benefit of the
Indemnifying Representative and shall pay to the Indemnifying Representative, as
promptly as practicable after receipt, a sum equal to the amount of such
proceeds or other amount received, up to the aggregate amount of any payments
received from the Indemnifying Representative pursuant to this Agreement in
respect of such Damages. Notwithstanding any other provisions of this Agreement,
it is the intention of the Parties that no insurer or any other third Person
shall be (i) entitled to a benefit it would not be entitled to receive in the
absence of the foregoing indemnification provisions, or (ii) relieved of the
responsibility to pay any claims for which it is obligated. To the extent that
any Damages that are subject to indemnification pursuant to this Section 1 are
deductible for income tax purposes by an Indemnitee, the amount of any Damages
shall be reduced by the income tax savings to such Person as a result of the
payment of such Damages.
(e) Representative Capacities
.. The Parties acknowledge that the Member Representative’s
obligations under this Section 1 are solely as a representative of the Company,
each Company Subsidiary and each Member in the manner set forth herein and that
the Member Representative shall have no personal responsibility for any expenses
incurred by him in such capacity and that all payments to any Secure Indemnified
Party as a result of such indemnification obligations shall be borne by the
Members pro rata, except for the liability of the Member Representative to a
Member for loss which such holder may suffer from fraud committed by the Member
Representative in carrying out its duties hereunder. Secure shall reimburse the
reasonable out-of-pocket expenses incurred by the Member Representative for
attorneys’ fees and other costs to the extent the Member Representative prevails
in the action resulting in such fees and costs.
(f) Limits on Indemnification
.. No amount shall be payable under Section 1 to an Indemnitee, unless
and until the aggregate amount of all indemnifiable Damages payable to an
Indemnitee exceeds Six Hundred Thousand Dollars ($600,000) (the “ Deductible ”), in which event
the amount payable shall be only the amount in excess of the Deductible. The
aggregate liability for Damages pursuant to Section 1(a) or Section 1(b) shall
not in any event exceed ten percent (10%) of the Retained Units (as such term is
defined in the Operating Agreement) (the “ Cap ”) (and with respect to
any claims pursuant to Section 1(b), for each Initial Member, shall be limited
to such Initial Member’s pro rata amount); provided, that, with respect
to any Damages based on breach of the Fundamental Representations or on fraud or
intentional misconduct the aggregate liability for Damages shall be twenty-five
percent (25%) of the Retained Units, and provided, further, that, in
no event shall the aggregate liability of the Initial Members for Damages
pursuant to this Section 1 exceed twenty-five percent (25%) of the Retained
Units. In no event shall Damages be deemed to include any special, indirect,
consequential or punitive damages. The rights of the Parties for indemnification
relating to this Agreement or the transactions contemplated by the Contribution
Agreement shall be strictly limited to those contained in this Section 1 and,
except as specifically set forth in Section 9.10 of the Contribution Agreement,
such indemnification rights shall be the exclusive remedies of the Parties with
respect to any matter arising under or in connection with the Contribution
Agreement. To the maximum extent permitted by applicable Law, the Parties hereby
waive all other rights and remedies with respect to any matter arising under or
in connection with this Agreement, whether under any applicable Law, at common
law or otherwise.
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(g) Set-Off . A
portion of the Earn-Out Payment equal to fifteen percent (15%) of the Retained
Units (the “ Earn-Out Payment
Holdback Amount ”) is subject to set-off for any claim for Damages that
the Secure Indemnified Parties have against the Initial Members in accordance
with the terms of this Agreement, including, without limitation, any Established
Claim which is based on a breach of a Fundamental Representation or on fraud or
intentional misconduct. This right of set-off is in addition to, and not in lieu
of, any rights a Secured Indemnified Party may have against the Escrow Fund. The
Secure Indemnified Parties acknowledge and agree that with respect to any claims
that they may have for Damages under this Agreement, they shall first look to
and exhaust the Escrowed Indemnification Units prior to attempting to set-off
any amounts from any Earn-Out Payments due to the Initial Members pursuant to
the Operating Agreement under this Section 1(g).
(h) Affect of Knowledge
.. The right to indemnification or other remedy of any Party based on
the representations, warranties, covenants and obligations contained in the
Contribution Agreement and the certificates to be delivered hereby, exists
subject to any investigation or knowledge acquired prior to the Effective Time.
If the Closing occurs, each Party is deemed to have waived in full any breach or
inaccuracy or failure to perform of any of the representations, warranties,
covenants and obligations of the other, of which such Party has knowledge of at
the Closing. For purposes of this Section 1(h) the term “knowledge” shall have
the meaning set forth in Section 9.7 of the Contribution Agreement; however,
with respect to Secure, and for purposes of this Section 1(h), the knowledge
parties shall be deemed to include C. Xxxxxx XxXxxxxx and Xxxxxxx
Xxxxxxxx.
2. Escrow .
2.1 (a)
Concurrently with the execution hereof, the Initial Members are delivering to
the Escrow Agent, to be held in escrow pursuant to the terms hereof, 717,884 of
the Retained Units (as such term is defined in Section 3.1 of the Operating
Agreement) (the “ Escrowed
Indemnification Units ”). The Escrowed Indemnification Units shall be
accompanied by ten (10) appropriate assignments separate from the applicable
certificates executed in blank by each Initial Member to be held in escrow
pursuant to the terms of this Agreement. The Escrowed Indemnification Units,
together with such assignments, are hereinafter referred to as the “ Escrow Fund. ” The Escrow
Agent shall maintain a single account for the Escrow Fund.
(b) The
Escrow Agent hereby agrees to act as escrow agent for the Escrow Fund and to
hold and safeguard and disburse the Escrow Fund pursuant to the terms and
conditions hereof. The Escrow Agent shall treat the Escrow Fund as a trust fund
in accordance with the terms of this Agreement and not as the property of
Secure. The Escrow Agent’s duties hereunder shall terminate upon its
distribution of the entirety of the Escrow Fund in accordance with this
Agreement.
(c)
Except as herein provided, while the Escrowed Indemnification Units are held by
the Escrow Agent under this Agreement, the Members shall retain all of their
rights as members of the Company with respect to the Escrowed Indemnification
Units in the Escrow Fund, including, without limitation, the right to vote their
Units (as such term is defined in the Operating Agreement) included in the
Escrow Fund.
(d) While
the Escrowed Indemnification Units are held by the Escrow Agent under this
Agreement, any dividends payable with respect to the Escrowed Indemnification
Units shall be paid to the Initial Members.
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(e) While the Escrowed Indemnification
Units are held by the Escrow Agent under this Agreement, no sale, transfer or
other disposition may be made of any or all of the Escrowed Indemnification
Units held in the Escrow Fund except (i) to a “ Permitted
Transferee ” (as
hereinafter defined), (ii) by virtue of the laws of descent and distribution
upon the death of a member of an Initial Member, or (iii) pursuant to a
qualified domestic relations order; provided, however, that such permissive
transfers may be implemented only upon the respective transferee’s written
agreement to be bound by the terms and conditions of this Agreement. As used in this
Agreement, the term “ Permitted
Transferee ” shall mean
(w) any members (or any constituent upper-tier member who is a natural person)
of the Initial Members; (x) members of the “ Immediate
Family ” (as hereinafter
defined) of any member of an Initial Member; (y) an entity in which (A) any
member of an Initial Member and/or members of the Immediate Family of any member
of an Initial Member beneficially own 100% of such entity’s voting and
non-voting equity securities, or (B) a member of any Initial Member and/or a
member of the Immediate Family of any member of an Initial Member is a general
partner and in which such member of an Initial Member and/or members of the
Immediate Family of any member of an Initial Member beneficially own 100% of all
capital accounts of such entity; and (z) a revocable trust established by any
member of an Initial Member during his/her lifetime for the benefit of such
member of an Initial Member or for the exclusive benefit of all or any Immediate
Family member of any member of an Initial Member. As used in this Agreement, the
term “ Immediate
Family ” means, with
respect to any member (or any constituent upper-tier member who is a natural
person) of an Initial Member, a spouse, parents, lineal descendants, the spouse
of any lineal descendant, and brothers and sisters (or a trust, all of whose
current beneficiaries are Immediate Family members of a member (or any
constituent upper-tier member who is a natural person) of an Initial Member). In
connection with and as a condition to each permitted transfer, the Permitted
Transferee shall deliver to the Escrow Agent an assignment separate from
certificate executed by the transferring member of an Initial Member, or where
applicable, an order of a court of competent jurisdiction, evidencing the
transfer of the units to the Permitted Transferee, together with assignments
separate from certificate executed in blank by the Permitted Transferee with
respect to the units transferred to the Permitted Transferee. During the
Survival Period, no owner or holder of the Escrowed Indemnification Units held
in the Escrow Fund shall pledge or grant a security interest in such Escrowed
Indemnification Units held in the Escrow Fund or grant a security interest in
such owner’s or holder’s rights under this Agreement.
(f) Prior
to the date hereof, the board of directors of Secure has appointed a committee
consisting of one of its then members to act on behalf of Secure to take all
necessary actions and make all decisions pursuant to this Agreement regarding
Secure’s right to indemnification pursuant to Section 1 of this Agreement. In
the event of a vacancy in such committee, the board of directors of Secure shall
appoint as a successor a Person who was a director of Secure prior to the date
hereof or some other Person who would qualify as an “independent” director of
Secure and who has not had any relationship with the Company prior to the
Closing.
2.2 (a)
Secure may make a claim for indemnification pursuant to Section 1 above (“ Indemnity Claim ”) against the
Escrow Fund during the Survival Period by giving notice (an “ Indemnity Notice ”) to the
Member Representative (with a copy to the Escrow Agent) specifying (i) the
covenant, representation, warranty, agreement, undertaking or obligation
contained in the Contribution Agreement which it asserts has been breached or
otherwise entitles Secure to indemnification, (ii) in reasonable detail, the
nature and dollar amount of any Indemnity Claim, and (iii) whether the Indemnity
Claim results from a Third Party Action against Secure. Secure also shall
deliver to the Escrow Agent (with a copy to the Member Representative),
concurrently with its delivery to the Escrow Agent of a copy of the Indemnity
Notice, a certification as to the date on which the Indemnity Notice was
delivered to the Member Representative.
(b) If
the Member Representative shall give a notice to Secure (with a copy to the
Escrow Agent) (a “ Counter
Indemnity Notice ”), within twenty (20) days following the date of
receipt (as specified in Secure’s certification) by the Member Representative of
the Indemnity Notice, disputing whether the Indemnity Claim is indemnifiable
under Section 1 above, Secure and the Member Representative shall attempt to
resolve such dispute by voluntary settlement as provided in Section 2.2(c)
below. If no Counter Indemnity Notice with respect to an Indemnity Claim is
received by the Escrow Agent from the Member Representative within such twenty
(20) day period, the Indemnity Claim shall be deemed to be an Established Claim
(as hereinafter defined) for purposes of this Agreement.
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(c) If
the Member Representative delivers a Counter Indemnity Notice to the Escrow
Agent, Secure and the Member Representative shall, during the period of thirty
(30) days following the delivery of such Counter Indemnity Notice or such
greater period of time as the parties may agree to in writing (with a copy to
the Escrow Agent), attempt in good faith to resolve the dispute with respect to
which the Counter Indemnity Notice was given. If Secure and the Member
Representative shall reach a settlement with respect to any such dispute, they
shall jointly deliver written notice of such settlement to the Escrow Agent
specifying the terms thereof. If Secure and the Member Representative shall be
unable to reach a settlement of a dispute with respect to which a Counter
Indemnity Notice was given, such dispute shall be resolved by arbitration
pursuant to Section 2.2(d) below.
(d) If
Secure and the Member Representative cannot resolve a dispute prior to
expiration of the thirty (30) day period referred to in Section 2.2(c) above (or
such longer period as the parties may have agreed to in writing), then such
dispute shall be submitted (and either party may submit such dispute) for
arbitration before a single arbitrator in New York, New York in accordance with
the commercial arbitration rules of the American Arbitration Association then in
effect to the extent that such provisions do not conflict with the provisions of
this paragraph. Secure and the Member Representative shall attempt to agree upon
an arbitrator; if they shall be unable to agree upon an arbitrator within ten
(10) days after the dispute is submitted for arbitration, then either Secure or
the Member Representative, upon written notice to the other, may apply for
appointment of such arbitrator by the American Arbitration Association. Each
party shall pay the fees and expenses of counsel used by it and 50% of the fees
and expenses of the arbitrator and of other expenses of the arbitration. The
arbitrator shall render his decision within 90 days after his appointment and
may award costs to either Secure or the Member Representative if, in his sole
opinion reasonably exercised, the claims made by any other party had no
reasonable basis and were arbitrary and capricious. Such decision and award
shall be in writing and shall be final and conclusive on the parties, and
counterpart copies thereof shall be delivered to each of the parties. Judgment
may be obtained on the decision of the arbitrator so rendered in any New York
state court sitting in New York County having jurisdiction, or any federal court
sitting in New York County and may be enforced in accordance with the law of the
State of New York. If the arbitrator shall fail to render a decision or award
within such 90-day period, either Secure or the Member Representative may apply
to any New York state court sitting in New York County, or any federal court
sitting in New York County, then having jurisdiction, by action, proceeding or
otherwise, as may be proper to determine the matter in dispute consistently with
the provisions of this Agreement. The parties consent to the exclusive
jurisdiction of the New York state court having jurisdiction and sitting in New
York County, or any federal court sitting in New York County, for this purpose.
The prevailing party (or either party, in the case of a decision or award
rendered in part for each party) shall send a copy of the arbitration decision
or of any judgment of the court to the Escrow Agent.
(e) As
used in this Agreement, “ Established Claim ” means any
(i) Indemnification Claim deemed established pursuant to the last sentence of
Section 2.2(b) above, (ii) Indemnification Claim resolved in favor of Secure by
settlement pursuant to Section 2.2(c) above, resulting in a dollar award to
Secure, (iii) Indemnification Claim established by the decision of an arbitrator
pursuant to Section 2.2(d) above, resulting in a dollar award to Secure, (iv)
Third Party Claim that has been sustained by a final determination (after
exhaustion of any appeals) of a court of competent jurisdiction, or (v) Third
Party Claim that Secure and the Member Representative have jointly notified the
Escrow Agent has been settled.
(f) (i)
Promptly after an Established Claim has occurred, Secure and the Member
Representative shall jointly deliver a notice to the Escrow Agent (a “ Joint Notice ”) directing the
Escrow Agent to release to Secure, and the Escrow Agent promptly shall release
to Secure, an amount of Escrowed Indemnification Units equal to the aggregate
dollar amount of the Established Claim (or, if at such time there remains in the
Escrow Fund less than the full amount so payable, the full amount remaining in
the Escrow Fund).
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(ii)
Payment of an Established Claim shall be made first by Escrowed Indemnification
Units held in the Escrow Fund. For purposes of each payment, such Escrowed
Indemnification Units shall be valued at $7.94 per Escrowed Indemnification
Unit. The Escrow Agent shall transfer to Secure out of the Escrow Fund that
number of Escrowed Indemnification Units necessary to satisfy each Established
Claim, as set out in the Joint Notice. Any dispute between Secure and the Member
Representative concerning the number of Escrowed Indemnification Units necessary
to satisfy any Established Claim, or any other dispute regarding a Joint Notice,
which the parties are unable to resolve in good faith, shall be resolved between
Secure and the Member Representative in accordance with the procedures specified
in Section 2.2(d) above, and shall not involve the Escrow Agent. Each transfer
of Escrowed Indemnification Units in satisfaction of an Established Claim shall
be made by the Escrow Agent delivering Secure one or more certificates
evidencing not less than such Initial Member’s pro rata portion of the aggregate
number of Escrowed Indemnification Units specified in the Joint Notice, together
with assignments separate from certificate executed in blank by such Initial
Member and completed by the Escrow Agent in accordance with instructions
included in the Joint Notice. The parties hereto (other than the Escrow Agent)
agree that the Escrow Agent has the right to make payments of Established Claims
in Escrowed Indemnification Units notwithstanding any other agreements
restricting or limiting the ability of any Initial Member to sell any Units (as
such term is defined in the Operating Agreement) or otherwise. Secure and the
Member Representative shall be required to exercise utmost good faith in all
matters relating to the preparation and delivery of each Joint
Notice.
2.3 On
the first business day after the expiration of the Survival Period, the Escrow
Agent shall distribute and deliver to the Initial Members certificates
representing such Initial Member’s pro rata share of the Escrowed
Indemnification Units remaining in the Escrow Fund, unless at such time there
are any Indemnity Claims with respect to which Indemnity Notices have been
received but which have not been resolved pursuant to Section 2.2 hereof or in
respect of which the Escrow Agent has received a Counter Indemnity Notice and
has not been notified of, and received a copy of, a settlement or final
determination (after exhaustion of any appeals) by a court of competent
jurisdiction, as the case may be (in either case, “ Pending Claims ”), and which,
if resolved or finally determined in favor of Secure, would result in a payment
to Secure, in which case the Escrow Agent shall retain, and the total amount of
such distributions to the Members, shall be reduced by, the “ Pending Claims Reserve ” (as
hereafter defined). Thereafter, if any Pending Claim becomes an Established
Claim, Secure and the Member Representative shall deliver to the Escrow Agent a
Joint Notice directing the Escrow Agent to pay to Secure an amount in respect
thereof determined in accordance with Section 2.2(f) above, and to deliver to
each Initial Member certificates representing such Initial Member’s pro rata
share of the Escrowed Indemnification Units then in the Escrow Fund having a
value equal to the amount by which the remaining portion of the Escrow Fund
exceeds the then Pending Claims Reserve (determined as set forth below), all as
specified in a Joint Notice. If any Pending Claim is resolved against Secure,
Secure and the Member Representative shall deliver to the Escrow Agent a Joint
Notice directing the Escrow Agent to pay to the Initial Members the amount by
which the remaining portion of the Escrow Fund exceeds the then Pending Claims
Reserve. Upon resolution of all Pending Claims, Secure and the Member
Representative shall deliver to the Escrow Agent a Joint Notice directing the
Escrow Agent to deliver to each Initial Member certificates representing such
Initial Member’s pro rata share of the Escrowed Indemnification Units remaining
in the Escrow Fund.
As used
herein, the “ Pending Claims
Reserve ” shall mean, at the time any such determination is made, that
number of Escrowed Indemnification Units in the Escrow Fund having a value
(using a price equal to $7.94 per Escrowed Indemnification Unit) equal to the
sum of the aggregate dollar amounts claimed to be due with respect to all
Pending Claims (as shown in the Indemnity Notices of such Claims).
2.4 The
Escrow Agent, Secure and the Member Representative shall cooperate in all
respects with one another in the calculation of any amounts determined to be
payable to Secure and the Initial Members in accordance with this Agreement and
in implementing the procedures necessary to effect such payments.
2.5 (a)
The Escrow Agent undertakes to perform only such duties as are expressly set
forth herein. It is understood that the Escrow Agent is not a trustee or
fiduciary and is acting hereunder merely in a ministerial
capacity.
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(b) The
Escrow Agent shall not be liable for any action taken or omitted by it in good
faith and in the exercise of its own best judgment, and 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 in good faith 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 Agreement unless evidenced by a writing delivered to the Escrow Agent
signed by the proper party or parties and, if the duties or rights of the Escrow
Agent are affected, unless it shall have given its prior written consent
thereto.
(c) The
Escrow Agent’s sole responsibility upon receipt of any notice requiring any
payment to Secure pursuant to the terms of this Agreement or, if such notice is
disputed by Secure or the Member Representative, the settlement with respect to
any such dispute, whether by virtue of joint resolution, arbitration or
determination of a court of competent jurisdiction, is to pay to Secure the
amount specified in such notice, and the Escrow Agent shall have no duty to
determine the validity, authenticity or enforceability of any specification or
certification made in such notice.
(d) The
Escrow Agent shall not be liable for any action taken by it in good faith and
believed by it to be authorized or within the rights or powers conferred upon it
by this Agreement, and may consult with counsel of its own choice and shall have
full and complete authorization and indemnification under Section 2.5(g) below
for any action taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel.
(e) The
Escrow Agent may resign at any time and be discharged from its duties as escrow
agent hereunder by its giving the other parties hereto written notice and such
resignation shall become effective as hereinafter provided. Such resignation
shall become effective at such time that the Escrow Agent shall turn over the
Escrow Fund to a successor escrow agent appointed jointly by Secure and the
Member Representative, or if no new escrow agent is so appointed within the
60-day period following the giving of such notice of resignation, the Escrow
Agent may deposit the Escrow Fund with any court it reasonably deems
appropriate.
(f) In
the event of a dispute between the parties as to the proper disposition of the
Escrow Fund, the Escrow Agent shall be entitled (but not required) to deliver
such Escrow Fund into the United States District Court for the Southern District
of New York and, upon giving notice to Secure and the Member Representative of
such action, shall thereupon be relieved of all further responsibility and
liability.
(g) The
Escrow Agent shall be indemnified and held harmless by Secure and the Initial
Members, jointly and severally, from and against any expenses, including counsel
fees and disbursements, or loss suffered by the Escrow Agent in connection with
any action, suit or other proceeding involving any claim which in any way,
directly or indirectly, arises out of or relates to this Agreement, the services
of the Escrow Agent hereunder, or the Escrow Fund held by it hereunder, other
than expenses or losses arising from the gross negligence or willful misconduct
of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of
any demand or claim or the commencement of any action, suit or proceeding, the
Escrow Agent shall notify the other parties hereto in writing. In the event of
the receipt of such notice, the Escrow Agent, in its sole discretion, may
commence an action in the nature of interpleader in an appropriate court to
determine ownership or disposition of the Escrow Fund in question or it may
deposit such Escrow Fund with the clerk of any appropriate court and be relieved
of any liability with respect thereto or it may retain the Escrow Fund pending
receipt of a final, non-appealable order of a court having jurisdiction over all
of the parties hereto directing to whom and under what circumstances the Escrow
Fund in question is to be disbursed and delivered.
(h) The
Escrow Agent shall be entitled to reimbursement from the parties for all
reasonable documented expenses paid or incurred by it in the administration of
its duties hereunder including, but not limited to, all counsel, advisors’ and
agents’ fees and disbursements and all taxes or other governmental charges. The
Escrow Agent shall be entitled to a one time administration fee of $2,500
payable within thirty (30) days of invoice issued by Escrow Agent (which fee
shall be split equally between Secure and the Member Respresentative (with the
Initial Members reimbursing the Member Representative for such
costs)).
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(i) From
time to time on and after the date hereof, Secure and the Member Representative
shall deliver or cause to be delivered to the Escrow Agent such further
documents and instruments and shall do or cause to be done such further acts as
the Escrow Agent shall reasonably request to carry out more effectively the
provisions and purposes of this Agreement, to evidence compliance herewith or to
assure itself that it is protected in acting hereunder.
(j)
Notwithstanding anything herein to the contrary, the Escrow Agent shall not be
relieved from liability hereunder for its own gross negligence or its own
willful misconduct.
2.6 This
Agreement expressly sets forth all the duties of the Escrow Agent with respect
to any and all matters pertinent hereto. No implied duties or obligations shall
be read into this Agreement against the Escrow Agent. The Escrow Agent shall not
be bound by the provisions of any agreement among the parties hereto except this
Agreement and shall have no duty to inquire into the terms and conditions of any
agreement made or entered into in connection with this Agreement, other than the
Contribution Agreement and the Operating Agreement.
2.7 This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective heirs, successors, assigns and legal representatives, shall be
governed by and construed in accordance with the law of New York applicable to
contracts made and to be performed therein. This Agreement cannot be changed or
terminated except by a writing signed by Secure, the Member Representative and
the Escrow Agent.
2.8
Secure and the Member Representative each hereby consents to the exclusive
jurisdiction of the New York state courts sitting in New York County and the
federal courts sitting in New York County. Service of process in any action or
proceeding brought against any party in respect of any such claim or controversy
may be made upon it by registered mail, postage prepaid, return receipt
requested, at the address specified in Section 2.9.
2.9. All
notices and other communications under this Agreement shall be in writing and
shall be deemed given upon delivery if given by hand or the next business day if
delivered by nationally recognized overnight carrier, or if given by facsimile
or telecopier, upon receipt by the party for whom such notice or communication
is intended, in each case to the intended recipient as follows:
If to
Secure, to:
Secure
America Acquisition Holdings, LLC
0000
Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attn: C.
Xxxxxx XxXxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
With a
required copy to (which shall not constitute notice):
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxx, Esq.
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
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TABLE OF
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If to the
Initial Members, to the Member Representative at:
Xxxxx X.
Xxxxxxxxxx
0000 X.
Xxxx Xx. Xxxxx 000
Xxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
With a
required copy to (which shall not constitute notice):
Xxxxxxxxx
Xxxxxxx LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxx X. Annex, Esq.
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
If to the
Escrow Agent, to:
SunTrust
Bank
000 Xxxx
Xxxx Xxxxxx, 0 xx
xxxxx
Xxxxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
2.10 (a)
If this Agreement requires a party to deliver any notice or other document, and
such party refuses to do so, the matter shall be submitted to arbitration
pursuant to Section 2.2(d) of this Agreement.
(b) This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original instrument and all of which together shall constitute a
single agreement.
2.11
Except for the rights of the Indemnitees and the limitations on indemnification
contained herein (benefiting, among others, the Initial Members), nothing
contained in this Agreement or in any instrument or document executed by any
party in connection with the transactions contemplated hereby shall create any
rights in, or be deemed to have been executed for the benefit of, any person
that is not a party hereto or thereto or a successor or permitted assign of such
a party.
[Signatures
are on following page]
10
TABLE OF
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IN
WITNESS WHEREOF, each of the parties hereto has duly executed this
Indemnification and Escrow Agreement on the date first above
written.
|
SECURE:
|
||
|
SECURE
AMERICA ACQUISITION
|
||
|
CORPORATION
|
||
|
By:
|
/s/
C. Xxxxxx XxXxxxxx
|
|
|
Name:
|
C.
Xxxxxx XxXxxxxx
|
|
|
Title:
|
Co-Chief
Executive Officer
|
|
|
COMPANY:
|
||
|
ULTIMATE
ESCAPES HOLDINGS, LLC
|
||
|
By:
|
/s/
Xxxxx X. Xxxxxxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxxxxxx
|
|
|
Title:
|
Chief
Executive Officer and President
|
|
|
MEMBER
REPRESENTATIVE:
|
||
|
/s/
Xxxxx Xxxxxxxxxx
|
||
|
Xxxxx
Xxxxxxxxxx
|
||
|
ESCROW
AGENT:
|
||
|
SUNTRUST
BANKS
|
||
|
By:
|
/s/ Xxxxx X. Xxxx | |
|
Name:
|
Xxxxx X. Xxxx | |
|
Title:
|
Vice President | |
11
