Common use of Indemnification of the Escrow Agent Clause in Contracts

Indemnification of the Escrow Agent. (a) Except as otherwise set forth in Section 6 hereof, the Parties other than the Escrow Agent shall indemnify and hold harmless the Escrow Agent against any and all losses, claims, damages, liability and expenses, including reasonable costs of investigation and counsel fees and disbursements, which may be imposed upon the Escrow Agent or incurred by the Escrow Agent hereunder, or in the performance of his duties as escrow agent hereunder including litigation arising from this Agreement or involving the subject matter hereof. (b) The Escrow Agent is authorized to and may consult with, and obtain advice from, legal counsel (including the firm of which he is Of Counsel) in the event any dispute, conflict or question arises as to the construction of any of the provisions hereof or its duties hereunder. The Escrow Agent shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice, opinions, and instructions of such counsel, except as otherwise provided in Section 6 hereof. Copies of all such opinions as are in writing shall be made available to the other Parties upon request. (c) The Escrow Agent may, but shall not be required to, defend himself in any legal proceedings which may be instituted against him or he may, but shall not be required to, institute legal proceedings with respect to any of the Escrow Property deposited pursuant to this Agreement. The Escrow Agent shall be indemnified and held harmless by the Parties other than the Escrow Agent against the cost and expense of any such defense or action, except as otherwise provided in Section 6 hereof. (d) The Escrow Agent shall deliver Escrow Property to any party only if in his judgment such delivery may be made under the terms of this Agreement without his incurring any liability. If conflicting demands not expressly provided for in this Agreement are made or notices served upon the Escrow Agent with respect to his action or omission under this Agreement, the Parties other than the Escrow Agent agree that the Escrow Agent shall have the absolute right to elect to do either or both of the following: (i) withhold and stop all future actions or omissions on its part under this Agreement; or (ii) file a suit in interpleader or for instructions or for declaratory judgment or other relief and obtain an order from the proper court requiring the Parties other than the Escrow Agent to litigate in such court their conflicting claims and demands. In the event any such action is taken, the Escrow Agent shall be fully released and discharged from all obligations to perform any duties or obligations imposed upon it by this Agreement unless and until otherwise ordered by the court.

Indemnification of the Escrow Agent. (a) Except as otherwise set forth in For the purposes of this Section 6 hereof5.2, references to the Parties Escrow Agent shall include the Escrow Agent's officers, directors, employees, counsel and agents. (b) Each party to this Agreement other than the Escrow Agent shall (each an "INDEMNIFYING PARTY" and together the "INDEMNIFYING PARTIES") will severally reimburse, indemnify and hold harmless the Escrow Agent from and against any and all losses, claims, damagesdamage, liability and expensesor loss suffered, including reasonable costs of investigation and counsel fees and disbursementsincurred by, which may be imposed upon or asserted against the Escrow Agent (including amounts paid in settlement of any action, suit, proceeding, or incurred claim brought or threatened to be brought and including reasonable expenses of legal counsel, collectively, "Loss") arising out of, in connection with or based upon any act or omission by the Escrow Agent hereunder, or relating in the performance of his duties as escrow agent hereunder including litigation arising from any way to this Agreement or involving the subject matter hereof. (b) The Escrow Agent's services hereunder. This indemnity will exclude any indemnification for any Loss arising in whole or in part, directly or indirectly, from any fraud, gross negligence or willful misconduct on the Escrow Agent's part. Anything in this Agreement to the contrary notwithstanding, in no event will the Escrow Agent is authorized to and may consult withbe liable for special, and obtain advice from, legal counsel indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) suffered by another party to this Agreement or by any Shareholder, even if the firm of which he is Of Counsel) in the event any dispute, conflict or question arises as to the construction of any Escrow Agent has been advised of the provisions hereof likelihood of such loss or its duties hereunderdamage and regardless of the form of action. The Escrow Agent's right to indemnification hereunder will survive the Escrow Agent's resignation or removal as the Escrow Agent shall incur no liability and shall be fully protected in acting in good faith in accordance with will survive the advice, opinions, and instructions termination of such counsel, except as otherwise provided in Section 6 hereof. Copies this Agreement by lapse of all such opinions as are in writing shall be made available to the other Parties upon requesttime or otherwise. (c) The Each Indemnifying Party may participate at its own expense in the defense of any claim or action that may be asserted against the Escrow Agent mayrelated to this Agreement, but shall not be required toand if the Indemnifying Parties so elect, defend himself the Indemnifying Parties may assume the defense of such claim or action; provided, however, that, if there exists a conflict of interest that would make it inappropriate, in any legal proceedings which may be instituted against him or he may, but shall not be required to, institute legal proceedings with respect to any the sole discretion of the Escrow Property deposited pursuant Agent, for the same counsel to this Agreement. The represent both Escrow Agent shall be indemnified and held harmless by the Parties other than Indemnifying Parties, the Escrow Agent against the cost and expense Agent's retention of any such defense or action, except separate counsel will be reimbursable as otherwise provided in Section 6 hereof5.3(b). (d) The Escrow Agent shall deliver will notify each Indemnifying Party by letter, or by telephone or telecopy confirmed by letter, of any receipt by Escrow Property to any party only if in his judgment such delivery may be made under the terms Agent of this Agreement without his incurring any liability. If conflicting demands not expressly provided for in this Agreement are made or notices served upon a written assertion of a claim against the Escrow Agent with respect to his action or omission under arising out of this Agreement, the Parties other than or any action commenced against the Escrow Agent agree arising out of this Agreement, within five (5) business days after the Escrow Agent's receipt of written notice of such claim. However, the Escrow Agent's failure to so notify each Indemnifying Party will not operate in any manner whatsoever to relieve an Indemnifying Party from any liability that it may have to the Escrow Agent shall have the absolute right to elect to do either or both of the following: (i) withhold and stop all future actions or omissions on its part under this Agreement; Section 5.3 or (ii) file a suit in interpleader or for instructions or for declaratory judgment or other relief and obtain an order from the proper court requiring the Parties other than otherwise unless such failure by the Escrow Agent to litigate in give such court their conflicting claims and demands. In the event any notice materially prejudices such action is taken, the Escrow Agent shall be fully released and discharged from all obligations to perform any duties or obligations imposed upon it by this Agreement unless and until otherwise ordered by the courtIndemnifying Party.

Indemnification of the Escrow Agent. (a) Except as otherwise set forth in Section 6 hereofParent agrees to indemnify, the Parties other than the Escrow Agent shall indemnify and hold harmless the Escrow Agent and each of its directors, officers, employees and agents appointed and acting in accordance with this Agreement and the Merger Agreement (collectively the "Indemnified Parties") against any and all claims, losses, claims, damages, liability costs, penalties, fines and expenses, reasonable expenses (including reasonable costs expenses of investigation and counsel fees and disbursementsthe Escrow Agent's legal counsel) which, which without fraud, negligence, wilful misconduct or bad faith on the part of such Indemnified Party, may be imposed upon paid, incurred or suffered by the Indemnified Party by reason of or as a result of the Escrow Agent's acceptance or administration of the Escrow Fund, its compliance with its duties set forth in this Agreement, or any written or oral instructions delivered to the Escrow Agent or incurred by Parent pursuant hereto. In no case shall Parent be liable under this indemnity for any claim against any of the Indemnified Parties unless Parent shall be notified by the Escrow Agent hereunderof the written assertion of a claim or of any action commenced against the Indemnified Parties, promptly after any of the Indemnified Parties shall have received any such written assertion of a claim or in the performance of his duties as escrow agent hereunder including litigation arising from this Agreement shall have been served with a summons or involving the subject matter hereof. (b) The Escrow Agent is authorized to and may consult with, and obtain advice from, other first legal counsel (including the firm of which he is Of Counsel) in the event any dispute, conflict or question arises process giving information as to the construction nature and basis of the claim. Subject to (ii), below, Parent shall be entitled to participate at their own expense in the defense and, if Parent so elects at any time after receipt of such notice, either of them may assume the defence of any of the provisions hereof or its duties hereundersuit brought to enforce any such claim. The Escrow Agent shall incur no liability have the right to employ separate counsel in any such suit and participate in the defence thereof but the fees and expenses of such counsel shall be fully protected in acting in good faith in accordance with at the advice, opinions, and instructions of such counsel, except as otherwise provided in Section 6 hereof. Copies of all such opinions as are in writing shall be made available to the other Parties upon request. (c) The Escrow Agent may, but shall not be required to, defend himself in any legal proceedings which may be instituted against him or he may, but shall not be required to, institute legal proceedings with respect to any expense of the Escrow Property deposited pursuant Agent unless: (i) the employment of such counsel has been authorized by Parent; or (ii) the named parties to this Agreement. The Escrow Agent shall be indemnified and held harmless by the Parties other than any such suit include both the Escrow Agent against the cost and expense of any such defense or action, except as otherwise provided in Section 6 hereof. (d) The Escrow Agent shall deliver Escrow Property to any party only if in his judgment such delivery may be made under the terms of this Agreement without his incurring any liability. If conflicting demands not expressly provided for in this Agreement are made or notices served upon the Escrow Agent with respect to his action or omission under this Agreement, the Parties other than the Escrow Agent agree that Parent and the Escrow Agent shall have the absolute right been advised by counsel acceptable to elect Parent that there may be one or more legal defences available to do either or both of the following: (i) withhold and stop all future actions or omissions on its part under this Agreement; or (ii) file a suit in interpleader or for instructions or for declaratory judgment or other relief and obtain an order from the proper court requiring the Parties other than the Escrow Agent that are different from or in addition to litigate those available to Parent and that an actual or potential conflict of interest exists (in which case Parent shall not have the right to assume the defence of such court their conflicting claims and demands. In the event any such action is taken, suit on behalf of the Escrow Agent but shall be fully released liable to pay the reasonable fees and discharged from all obligations to perform any duties or obligations imposed upon it by this Agreement unless and until otherwise ordered by expenses of counsel for the courtEscrow Agent).

Indemnification of the Escrow Agent. (a) Except as otherwise set forth in For the purposes of this Section 6 hereof5.4, references to the Parties Escrow Agent shall include the Escrow Agent’s officers, directors, employees, counsel and agents. (b) Each Party to this Agreement other than the Escrow Agent shall (each an “Indemnifying Party” and together the “Indemnifying Parties”) will jointly and severally reimburse, indemnify and hold harmless the Escrow Agent from and against any and all losses, claims, damagesdamage, liability and expensesor loss suffered, including reasonable costs of investigation and counsel fees and disbursementsincurred by, which may be imposed upon or asserted against the Escrow Agent (including amounts paid in settlement of any action, suit, proceeding, or incurred claim brought or threatened to be brought and including reasonable expenses of legal counsel, collectively, “Loss”) arising out of, in connection with or based upon any act or omission by the Escrow Agent hereunder, or relating in the performance of his duties as escrow agent hereunder including litigation arising from any way to this Agreement or involving the subject matter hereof. (b) The Escrow Agent’s services hereunder. This indemnity will exclude any indemnification for any Loss arising in whole or in part, directly or indirectly, from any gross negligence or willful misconduct on the Escrow Agent’s part. Anything in this Agreement to the contrary notwithstanding, in no event will the Escrow Agent is authorized to and may consult withbe liable for special, and obtain advice from, legal counsel indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) suffered by another Party to this Agreement, even if the firm of which he is Of Counsel) in the event any dispute, conflict or question arises as to the construction of any Escrow Agent has been advised of the provisions hereof or its duties hereunder. The Escrow Agent shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice, opinions, and instructions likelihood of such counsel, except as otherwise provided in Section 6 hereofloss or damage and regardless of the form of action. Copies of all such opinions as are in writing shall be made available to the other Parties upon request.ESCROW AGREEMENT (c) The Each Indemnifying Party may participate at its own expense in the defense of any claim or action that may be asserted against the Escrow Agent mayrelated to this Agreement, but shall not be required toand if the Indemnifying Parties so elect, defend himself the Indemnifying Parties may assume the defense of such claim or action; provided, however, that, if there exists a conflict of interest that would make it inappropriate, in any legal proceedings which may be instituted against him or he may, but shall not be required to, institute legal proceedings with respect to any the sole discretion of the Escrow Property deposited pursuant Agent, for the same counsel to this Agreementrepresent both Escrow Agent and the Indemnifying Parties, the Escrow Agent’s retention of separate counsel will be reimbursable as herein above provided. The Escrow Agent shall be indemnified and held harmless by Agent’s right to indemnification hereunder will survive the Parties other than Escrow Agent’s resignation or removal as the Escrow Agent against and will survive the cost and expense termination of any such defense this Agreement by lapse of time or action, except as otherwise provided in Section 6 hereofotherwise. (d) The Escrow Agent shall deliver will notify each Indemnifying Party by letter, or by telephone or telecopy confirmed by letter, of any receipt by Escrow Property to any party only if in his judgment such delivery may be made under the terms Agent of this Agreement without his incurring any liability. If conflicting demands not expressly provided for in this Agreement are made or notices served upon a written assertion of a claim against the Escrow Agent with respect to his action or omission under arising out of this Agreement, the Parties other than or any action commenced against the Escrow Agent agree arising out of this Agreement, within five (5) business days after the Escrow Agent’s receipt of written notice of such claim. However, the Escrow Agent’s failure to so notify each Indemnifying Party will not operate in any manner whatsoever to relieve an Indemnifying Party from any liability that it may have to the Escrow Agent shall have the absolute right to elect to do either or both of the following: (i) withhold and stop all future actions or omissions on its part under this Agreement; Section 5.4 or (ii) file a suit in interpleader or for instructions or for declaratory judgment or other relief and obtain an order from the proper court requiring the Parties other than otherwise unless such failure by the Escrow Agent to litigate in give such court their conflicting claims and demands. In the event any notice materially prejudices such action is taken, the Escrow Agent shall be fully released and discharged from all obligations to perform any duties or obligations imposed upon it by this Agreement unless and until otherwise ordered by the courtIndemnifying Party.

Indemnification of the Escrow Agent. (a) Except as otherwise set forth in For the purposes of this Section 6 hereof5.3, the Parties other than references to the Escrow Agent shall include the Escrow Agent’s officers, directors, employees, counsel and agents. (b) The Parties (each an “Indemnifying Party” and together the “Indemnifying Parties”) will reimburse, indemnify and hold harmless the Escrow Agent from and against any and all losses, claims, damagesdamage, liability and expensesor loss suffered, including reasonable costs of investigation and counsel fees and disbursementsincurred by, which may be imposed upon or asserted against the Escrow Agent (including amounts paid in settlement of any action, suit, proceeding, or incurred claim brought or threatened to be brought and including reasonable expenses of legal counsel, collectively, “Loss”) arising out of, in connection with or based upon any act or omission by the Escrow Agent hereunder, or relating in the performance of his duties as escrow agent hereunder including litigation arising from any way to this Agreement or involving the subject matter hereof. Escrow Agent’s services hereunder; provided, however, that Seller and the Securityholders (b) The each on a pro rata basis based on their respective interest in the Initial Escrow Value), on the one hand, and Purchaser, on the other hand, shall each be severally liable for 50% of any Loss. This indemnity will exclude any indemnification for any Loss arising in whole or in part, directly or indirectly, from any gross negligence or willful misconduct on the Escrow Agent’s part. Anything in this Agreement to the contrary notwithstanding, in no event will the Escrow Agent is authorized to and may consult withbe liable for special, and obtain advice from, legal counsel indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) suffered by another party to this Agreement, even if the firm Escrow Agent has been advised of which he is Of Counsel) the likelihood of such loss or damage and regardless of the form of action. The Parties hereby grant the Escrow Agent a lien on, right of set-off against and security interest in the event any dispute, conflict or question arises as to Escrow Property for the construction payment of any of the provisions hereof or its duties claim for indemnification, compensation, expenses and amounts due hereunder. The Escrow Agent shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice, opinions, and instructions of such counsel, except as otherwise provided in Section 6 hereof. Copies of all such opinions as are in writing shall be made available to the other Parties upon request. (c) The Each Indemnifying Party may participate at its own expense in the defense of any claim or action that may be asserted against the Escrow Agent mayrelated to this Agreement, but shall not be required toand if the Indemnifying Parties so elect, defend himself the Indemnifying Parties may assume the defense of such claim or action; provided, however, that, if there exists a conflict of interest that would make it inappropriate, in any legal proceedings which may be instituted against him or he may, but shall not be required to, institute legal proceedings with respect to any the sole discretion of the Escrow Property deposited pursuant Agent, for the same counsel to this Agreementrepresent both Escrow Agent and the Indemnifying Parties, the Escrow Agent’s retention of separate counsel will be reimbursable as herein above provided. The Escrow Agent shall be indemnified and held harmless by Agent’s right to indemnification hereunder will survive the Parties other than Escrow Agent’s resignation or removal as the Escrow Agent against and will survive the cost and expense termination of any such defense this Agreement by lapse of time or action, except as otherwise provided in Section 6 hereofotherwise. (d) The Escrow Agent shall deliver will notify each Indemnifying Party by letter, or by telephone or telecopy confirmed by letter, of any receipt by Escrow Property to any party only if in his judgment such delivery may be made under the terms Agent of this Agreement without his incurring any liability. If conflicting demands not expressly provided for in this Agreement are made or notices served upon a written assertion of a claim against the Escrow Agent with respect to his action or omission under arising out of this Agreement, the Parties other than or any action commenced against the Escrow Agent agree arising out of this Agreement, within five (5) Business Days after the Escrow Agent’s receipt of written notice of such claim. However, the Escrow Agent’s failure to so notify each Indemnifying Party will not operate in any manner whatsoever to relieve an Indemnifying Party from any liability that it may have to the Escrow Agent shall have the absolute right to elect to do either or both of the following: (i) withhold and stop all future actions or omissions on its part under this Agreement; Section 5.3 or (ii) file a suit in interpleader or for instructions or for declaratory judgment or other relief and obtain an order from the proper court requiring the Parties other than otherwise unless such failure by the Escrow Agent to litigate in give such court their conflicting claims and demands. In the event any notice materially prejudices such action is taken, the Escrow Agent shall be fully released and discharged from all obligations to perform any duties or obligations imposed upon it by this Agreement unless and until otherwise ordered by the courtIndemnifying Party.

Indemnification of the Escrow Agent. (a) Except as otherwise set forth in For the purposes of this Section 6 hereof5.3, references to the Parties Escrow Agent shall include the Escrow Agent's officers, directors, employees, counsel and agents. (b) Each party to this Agreement other than the Escrow Agent shall (each an "INDEMNIFYING PARTY" and together the "INDEMNIFYING PARTIES") will severally reimburse, indemnify and hold harmless the Escrow Agent from and against any and all losses, claims, damagesdamage, liability and expensesor loss suffered, including reasonable costs of investigation and counsel fees and disbursementsincurred by, which may be imposed upon or asserted against the Escrow Agent (including amounts paid in settlement of any action, suit, proceeding, or incurred claim brought or threatened to be brought and including reasonable expenses of legal counsel, collectively, "LOSS") arising out of, in connection with or based upon any act or omission by the Escrow Agent hereunder, or relating in the performance of his duties as escrow agent hereunder including litigation arising from any way to this Agreement or involving the subject matter hereof. (b) The Escrow Agent's services hereunder. This indemnity will exclude any indemnification for any Loss arising in whole or in part, directly or indirectly, from any gross negligence or willful misconduct on the Escrow Agent's part. Anything in this Agreement to the contrary notwithstanding, in no event will the Escrow Agent is authorized to and may consult withbe liable for special, and obtain advice from, legal counsel indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) suffered by another party to this Agreement or by any Stockholder, even if the firm of which he is Of Counsel) in the event any dispute, conflict or question arises as to the construction of any Escrow Agent has been advised of the provisions hereof or its duties hereunder. The Escrow Agent shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice, opinions, and instructions likelihood of such counsel, except as otherwise provided in Section 6 hereof. Copies loss or damage and regardless of all such opinions as are in writing shall be made available to the other Parties upon requestform of action. (c) The Each Indemnifying Party may participate at its own expense in the defense of any claim or action that may be asserted against the Escrow Agent mayrelated to this Agreement, but shall not be required toand if the Indemnifying Parties so elect, defend himself the Indemnifying Parties may assume the defense of such claim or action; provided, however, that, if there exists a conflict of interest that would make it inappropriate, in any legal proceedings which may be instituted against him or he may, but shall not be required to, institute legal proceedings with respect to any the sole discretion of the Escrow Property deposited pursuant Agent, for the same counsel to this Agreementrepresent both Escrow Agent and the Indemnifying Parties, the Escrow Agent's retention of separate counsel will be reimbursable as herein above provided. The Escrow Agent shall be indemnified and held harmless by Agent's right to indemnification hereunder will survive the Parties other than Escrow Agent's resignation or removal as the Escrow Agent against and will survive the cost and expense termination of any such defense this Agreement by lapse of time or action, except as otherwise provided in Section 6 hereofotherwise. (d) The Escrow Agent shall deliver will notify each Indemnifying Party by letter, or by telephone or telecopy confirmed by letter, of any receipt by Escrow Property to any party only if in his judgment such delivery may be made under the terms Agent of this Agreement without his incurring any liability. If conflicting demands not expressly provided for in this Agreement are made or notices served upon a written assertion of a claim against the Escrow Agent with respect to his action or omission under arising out of this Agreement, the Parties other than or any action commenced against the Escrow Agent agree arising out of this Agreement, within five (5) business days after the Escrow Agent's receipt of written notice of such claim. However, the Escrow Agent's failure to so notify each Indemnifying Party will not operate in any manner whatsoever to relieve an Indemnifying Party from any liability that it may have to the Escrow Agent shall have the absolute right to elect to do either or both of the following: (i) withhold and stop all future actions or omissions on its part under this Agreement; Section 5.3 or (ii) file a suit in interpleader or for instructions or for declaratory judgment or other relief and obtain an order from the proper court requiring the Parties other than otherwise unless such failure by the Escrow Agent to litigate in give such court their conflicting claims and demands. In the event any notice materially prejudices such action is taken, the Escrow Agent shall be fully released and discharged from all obligations to perform any duties or obligations imposed upon it by this Agreement unless and until otherwise ordered by the courtIndemnifying Party.

Indemnification of the Escrow Agent. (a) Except as otherwise set forth in Section 6 hereofParent agrees to indemnify, the Parties other than the Escrow Agent shall indemnify and hold harmless the Escrow Agent and each of its directors, officers, employees and agents appointed and acting in accordance with this Agreement and the Merger Agreement (collectively the “Indemnified Parties") against any and all claims, losses, claims, damages, liability costs, penalties, fines and expenses, reasonable expenses (including reasonable costs expenses of investigation and counsel fees and disbursementsthe Escrow Agent’s legal counsel) which, which without fraud, negligence, wilful misconduct or bad faith on the part of such Indemnified Party, may be imposed upon paid, incurred or suffered by the Indemnified Party by reason of or as a result of the Escrow Agent’s acceptance or administration of the Escrow Fund, its compliance with its duties set forth in this Agreement, or any written or oral instructions delivered to the Escrow Agent or incurred by Parent pursuant hereto. In no case shall Parent be liable under this indemnity for any claim against any of the Indemnified Parties unless Parent shall be notified by the Escrow Agent hereunderof the written assertion of a claim or of any action commenced against the Indemnified Parties, promptly after any of the Indemnified Parties shall have received any such written assertion of a claim or in the performance of his duties as escrow agent hereunder including litigation arising from this Agreement shall have been served with a summons or involving the subject matter hereof. (b) The Escrow Agent is authorized to and may consult with, and obtain advice from, other first legal counsel (including the firm of which he is Of Counsel) in the event any dispute, conflict or question arises process giving information as to the construction nature and basis of the claim. Subject to (ii), below, Parent shall be entitled to participate at their own expense in the defense and, if Parent so elects at any time after receipt of such notice, either of them may assume the defence of any of the provisions hereof or its duties hereundersuit brought to enforce any such claim. The Escrow Agent shall incur no liability have the right to employ separate counsel in any such suit and participate in the defence thereof but the fees and expenses of such counsel shall be fully protected in acting in good faith in accordance with at the advice, opinions, and instructions of such counsel, except as otherwise provided in Section 6 hereof. Copies of all such opinions as are in writing shall be made available to the other Parties upon request. (c) The Escrow Agent may, but shall not be required to, defend himself in any legal proceedings which may be instituted against him or he may, but shall not be required to, institute legal proceedings with respect to any expense of the Escrow Property deposited pursuant Agent unless: (i) the employment of such counsel has been authorized by Parent; or (ii) the named parties to this Agreement. The Escrow Agent shall be indemnified and held harmless by the Parties other than any such suit include both the Escrow Agent against the cost and expense of any such defense or action, except as otherwise provided in Section 6 hereof. (d) The Escrow Agent shall deliver Escrow Property to any party only if in his judgment such delivery may be made under the terms of this Agreement without his incurring any liability. If conflicting demands not expressly provided for in this Agreement are made or notices served upon the Escrow Agent with respect to his action or omission under this Agreement, the Parties other than the Escrow Agent agree that Parent and the Escrow Agent shall have the absolute right been advised by counsel acceptable to elect Parent that there may be one or more legal defences available to do either or both of the following: (i) withhold and stop all future actions or omissions on its part under this Agreement; or (ii) file a suit in interpleader or for instructions or for declaratory judgment or other relief and obtain an order from the proper court requiring the Parties other than the Escrow Agent that are different from or in addition to litigate those available to Parent and that an actual or potential conflict of interest exists (in which case Parent shall not have the right to assume the defence of such court their conflicting claims and demands. In the event any such action is taken, suit on behalf of the Escrow Agent but shall be fully released liable to pay the reasonable fees and discharged from all obligations to perform any duties or obligations imposed upon it by this Agreement unless and until otherwise ordered by expenses of counsel for the courtEscrow Agent).

Indemnification of the Escrow Agent. (a) Except as otherwise set forth in For the purposes of this Section 6 hereof5.4, references to the Parties Escrow Agent shall include the Escrow Agent’s officers, directors, employees, counsel and agents. (b) Each party to this Agreement other than the Escrow Agent shall (each an “Indemnifying Party” and together the “Indemnifying Parties”) will jointly and severally reimburse, indemnify and hold harmless the Escrow Agent from and against any and all losses, claims, damagesdamage, liability and expensesor loss suffered, including reasonable costs of investigation and counsel fees and disbursementsincurred by, which may be imposed upon or asserted against the Escrow Agent (including amounts paid in settlement of any action, suit, proceeding, or incurred claim brought or threatened to be brought and including reasonable expenses of legal counsel, collectively, “Loss”) arising out of, in connection with or based upon any act or omission by the Escrow Agent hereunder, or relating in the performance of his duties as escrow agent hereunder including litigation arising from any way to this Agreement or involving the subject matter hereof. (b) The Escrow Agent’s services hereunder. This indemnity will exclude any indemnification for any Loss arising in whole or in part, directly or indirectly, from any gross negligence or willful misconduct on the Escrow Agent’s part. Anything in this Agreement to the contrary notwithstanding, in no event will the Escrow Agent is authorized to and may consult withbe liable for special, and obtain advice from, legal counsel indirect ESCROW AGREEMENT or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) suffered by another party to this Agreement, even if the firm of which he is Of Counsel) in the event any dispute, conflict or question arises as to the construction of any Escrow Agent has been advised of the provisions hereof or its duties hereunder. The Escrow Agent shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice, opinions, and instructions likelihood of such counsel, except as otherwise provided in Section 6 hereof. Copies loss or damage and regardless of all such opinions as are in writing shall be made available to the other Parties upon requestform of action. (c) The Each Indemnifying Party may participate at its own expense in the defense of any claim or action that may be asserted against the Escrow Agent mayrelated to this Agreement, but shall not be required toand if the Indemnifying Parties so elect, defend himself the Indemnifying Parties may assume the defense of such claim or action; provided, however, that, if there exists a conflict of interest that would make it inappropriate, in any legal proceedings which may be instituted against him or he may, but shall not be required to, institute legal proceedings with respect to any the sole discretion of the Escrow Property deposited pursuant Agent, for the same counsel to this Agreementrepresent both Escrow Agent and the Indemnifying Parties, the Escrow Agent’s retention of separate counsel will be reimbursable as herein above provided. The Escrow Agent shall be indemnified and held harmless by Agent’s right to indemnification hereunder will survive the Parties other than Escrow Agent’s resignation or removal as the Escrow Agent against and will survive the cost and expense termination of any such defense this Agreement by lapse of time or action, except as otherwise provided in Section 6 hereofotherwise. (d) The Escrow Agent shall deliver will notify each Indemnifying Party by letter, or by telephone or telecopy confirmed by letter, of any receipt by Escrow Property to any party only if in his judgment such delivery may be made under the terms Agent of this Agreement without his incurring any liability. If conflicting demands not expressly provided for in this Agreement are made or notices served upon a written assertion of a claim against the Escrow Agent with respect to his action or omission under arising out of this Agreement, the Parties other than or any action commenced against the Escrow Agent agree arising out of this Agreement, within five (5) business days after the Escrow Agent’s receipt of written notice of such claim. However, the Escrow Agent’s failure to so notify each Indemnifying Party will not operate in any manner whatsoever to relieve an Indemnifying Party from any liability that it may have to the Escrow Agent shall have the absolute right to elect to do either or both of the following: (i) withhold and stop all future actions or omissions on its part under this Agreement; Section 5.4 or (ii) file a suit in interpleader or for instructions or for declaratory judgment or other relief and obtain an order from the proper court requiring the Parties other than otherwise unless such failure by the Escrow Agent to litigate in give such court their conflicting claims and demands. In the event any notice materially prejudices such action is taken, the Escrow Agent shall be fully released and discharged from all obligations to perform any duties or obligations imposed upon it by this Agreement unless and until otherwise ordered by the courtIndemnifying Party.