Legal IandE Template

Legal IandE Template

This Indemnity and Escrow Agreement (the "Agreement") is made and entered into as of by and between Party A: , an entity of type with principal place of business at and Party B: , an entity of type with principal place of business at .

Recitals

WHEREAS, the parties have entered into certain transactions and agreements described as (the "Transaction");

WHEREAS, as a condition to the Transaction, the parties desire that certain funds, documents and other property be held in escrow by an independent escrow agent upon the terms and subject to the conditions set forth herein;

WHEREAS, the parties desire to allocate responsibility for claims, losses and third-party liabilities arising out of the Transaction and to set forth procedures for notice, defense and indemnification;

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the sufficiency of which is acknowledged, the parties agree as follows:

1. Definitions

For purposes of this Agreement, the following terms shall have the following meanings: "Escrow Property" means the funds, instruments and documents delivered to the Escrow Agent pursuant to Section 2. "Claim" means any demand, action, suit, proceeding or governmental investigation asserted or instituted by any person that may give rise to a claim for indemnification under this Agreement.

2. Appointment of Escrow Agent; Escrow Deposit

The parties appoint as Escrow Agent to hold and administer the Escrow Property in accordance with this Agreement. The Escrow Agent's address for delivery is .

On or before , Party A shall deposit with the Escrow Agent the sum of $ (the "Escrow Amount") and any other documents or instruments required by the parties.

3. Escrow Instructions; Disbursement

The Escrow Agent shall hold and disburse the Escrow Property only in accordance with joint written instructions signed by both parties, or upon the occurrence of the following release conditions: .

If one party delivers a written request for disbursement and the other party does not consent, the Escrow Agent shall retain the Escrow Property pending a joint instruction or a final court order. The Escrow Agent shall have no duty to determine the validity of any Claim or dispute between the parties and is entitled to rely on reasonably appearing instruments and certifications.

4. Claims; Notice; Defense

A party seeking indemnification (the "Indemnified Party") must provide the other party (the "Indemnifying Party") written notice of any Claim within days after becoming aware of the Claim. Failure to give timely notice shall not relieve the Indemnifying Party of liability except to the extent it is materially prejudiced by the delay.

The Indemnifying Party shall have the right, at its expense, to assume the defense of any Claim with counsel reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall not settle any Claim that imposes any obligation or admits fault on the Indemnified Party without the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld.

5. Indemnification; Limitation of Liability

Each party (the "Indemnifying Party") shall indemnify, defend and hold harmless the other party from and against any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees) arising out of or resulting from any breach of representations, warranties or covenants made by the Indemnifying Party in connection with the Transaction or from claims attributable to the Indemnifying Party's negligence or willful misconduct.

The aggregate liability of each party for direct damages under this Agreement shall not exceed $ , except for liability arising from fraud, willful misconduct or breach of confidentiality, which shall not be limited.

6. Representations and Warranties

Each party represents and warrants that it has the full right, power and authority to enter into this Agreement and to carry out its obligations hereunder, that execution and delivery of this Agreement has been duly authorized, and that this Agreement constitutes a legal, valid and binding obligation enforceable against such party in accordance with its terms.

7. Insurance

Each party shall maintain insurance coverage reasonable and customary for its business sufficient to cover claims that may be the subject of indemnification hereunder and shall provide certificates of insurance to the other party upon request.

8. Term; Survival; Termination

This Agreement shall remain in effect until the Escrow Property has been fully disbursed in accordance with Section 3 and all Claims relating to the Transaction have been finally resolved. The covenants, representations, warranties and indemnities contained herein shall survive termination or expiration of this Agreement to the extent necessary to enforce any right or obligation arising prior to such termination.

9. Notices

All notices, requests, demands and other communications under this Agreement shall be in writing and shall be delivered to the addresses below (or to such other address as may be designated by a party in writing):

10. Amendments; Waiver; Counterparts

No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties. No failure or delay by any party in exercising any right shall operate as a waiver of that right. This Agreement may be executed in counterparts, each of which shall be an original, and all of which together shall constitute one and the same instrument. Facsimile or electronic signatures shall be deemed original signatures for all purposes.

11. Governing Law; Venue

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to conflict of laws principles. The parties submit to the exclusive jurisdiction and venue of the state and federal courts located in that State for resolution of disputes arising under this Agreement.

12. Entire Agreement; Severability

This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings, whether written or oral. If any provision of this Agreement is held invalid or unenforceable, such provision shall be enforced to the maximum extent permitted by law and the remaining provisions shall remain in full force and effect.

13. Miscellaneous

The Escrow Agent shall be entitled to indemnification from the parties for its acts or omissions taken in good faith in the performance of its duties hereunder. The Escrow Agent may resign upon written notice to the parties and shall be discharged upon appointment of a successor and delivery of the Escrow Property to such successor.

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