2Indemnification. Borrower will INDEMNIFY, PROTECT, HOLD HARMLESS, and defend Lender, its successors, assigns and shareholders (including corporate shareholders), and the directors, officers, employees, servants and agents of any of the foregoing, for, from and against: (a) any and all liability, damage, penalties, or fines, loss, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, the Collateral, Lender's status by virtue of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are caused by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such termination.
Appears in 2 contracts
Sources: Loan Agreement (BBX Capital Corp), Loan Agreement (BFC Financial Corp)
2Indemnification. Borrower will INDEMNIFYIssuer agrees to indemnify, PROTECT, HOLD HARMLESS, defend and defend Lender, its successors, assigns and shareholders (including corporate shareholders), hold Purchaser Agent and the Purchasers and their respective directors, officers, employees, servants and agents of agents, attorneys, or any of other Person affiliated with or representing Purchaser Agent or the foregoingPurchasers (each, for, from and an “Indemnified Person”) harmless against: (a) all obligations, demands, claims, and liabilities (collectively, “Claims”) asserted by any other party (including Parent or any of its Subsidiaries) in connection with, related to, following, or arising from, out of or under, (i) the transactions contemplated by the Note Documents, (ii) any Notes or the use or proposed use of the proceeds therefrom or (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Obligor or any of its Subsidiaries, or any Environmental Liability related in any way to any Obligor or any of its Subsidiaries; and (b) all losses or Reimbursable Expenses incurred, or paid by Indemnified Person in connection with, related to, following, or arising from, out of or under, the transactions contemplated by the Note Documents between Purchaser Agent, and/or the Purchasers and Issuer (including reasonable attorneys’ fees and expenses), except for Claims and/or losses are determined by a court of competent jurisdiction by final and nonappealable judgment to have directly resulted from such Indemnified Person’s gross negligence or willful misconduct. Issuer hereby further indemnifies, defends and holds each Indemnified Person harmless from and against any and all liabilityliabilities, damageobligations, losses, damages, penalties, or finesactions, lossjudgments, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement)suits, claims, demandscosts, suitsexpenses and disbursements of any kind or nature whatsoever (including the fees and disbursements of counsel for such Indemnified Person) in connection with any investigative, proceedings response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnified Person shall be designated a party thereto and including any such proceeding initiated by or on behalf of Parent or any of its Subsidiaries, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (whether civil other than any broker retained by Purchaser Agent or criminal)Purchasers) asserting any right to payment for the transactions contemplated hereby which may be imposed on, orders, judgments, penalties, fines and other sanctions whatsoever incurred by or asserted against it such Indemnified Person as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, transactions contemplated hereby and the Collateral, Lender's status by virtue use or intended use of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions proceeds of the Loan DocumentsNotes except for liabilities, the sale or financing of Timeshare Inventoryobligations, the creation of liens losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are disbursements directly caused by Lender's such Indemnified Person’s gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) misconduct. This Section 13.2 shall not apply with respect to any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loantaxes, other than those owed to ▇▇▇▇ Financial any taxes that represent losses, claims, damages, etc. arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such terminationnon-tax claim.
Appears in 2 contracts
Sources: Note Purchase Agreement (Zealand Pharma a/S), Note Purchase Agreement (Zealand Pharma a/S)
2Indemnification. Borrower will INDEMNIFY, PROTECT, HOLD HARMLESS, and defend Lender, its successors, assigns and shareholders (including corporate shareholders), and the directors, officers, employees, servants and agents of any of the foregoing, for, from and against: (a) any and all liability, damage, penalties, or fines, loss, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the a Timeshare Project, the Collateral, Lender's status by virtue of the Loan Documents, sales of Timeshare Inventory Interests or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions of the Loan Documents, the sale or financing of Timeshare InventoryInterests, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are caused by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; and (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase IIIFinancial. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such termination.
Appears in 2 contracts
Sources: Loan and Security Agreement (BBX Capital Corp), Loan and Security Agreement (BFC Financial Corp)
2Indemnification. Borrower will INDEMNIFY(a) Following and subject to the occurrence of the Closing, PROTECTsubject to the limitations described in Section 9.1 and Section 9.5, HOLD HARMLESSeach Seller shall, severally but not jointly (sans solidarité), indemnify, defend, and defend Lenderhold harmless each of Purchaser and its Affiliates, its successorstheir respective directors, officers and employees, and their respective heirs, successors and assigns and shareholders (including corporate shareholderseach, a “Purchaser Indemnified Party” and, collectively, the “Purchaser Indemnified Parties”), and subject to the directors, officers, employees, servants and agents provisions of any of the foregoing, forthis Article 9, from and against: (a) against any and all liabilitylosses, damagecosts, reasonable expenses, claims, damages, actions, suits, proceedings, hearings, investigations, charges, complaints, demands, injunctions, judgments, orders, decrees, rulings, directions, fines, deficiencies, amounts paid in settlement, Liabilities, Taxes, liens, and fees and court costs, including interest, penalties, and reasonable attorneys’, consultants’ and other professional fees and disbursements and reasonable expenses of investigation and enforcement of rights under this Agreement (collectively, “Damages”) incurred by such Purchaser Indemnified Party that arise out of or finesresult from:
(i) any breach of any representation or warranty contained in Article 4 of this Agreement;
(ii) any breach of any covenant or obligation in this Agreement that the Sellers are to cause Corlieve to perform at or prior to the Closing;
(iii) any breach of any covenant or obligation in this Agreement to be performed by the Holder Representative;
(iv) any inaccuracies in the Closing Date Allocation Schedule; and
(v) any error by the Paying Agent in executing its responsibilities under the Paying Agent Agreement. With respect to Damages referred to in Section 9.2(a), losseach Seller shall only be liable for the portion of such Damages corresponding to its Pro Rata Share.
(b) Following and subject to the occurrence of the Closing, costs subject to the limitations described in Section 9.1 and Section 9.5, each Seller, severally and not jointly (sans solidarité), shall indemnify, defend, and hold harmless the Purchaser Indemnified Parties from and against any and all Damages incurred by such Purchaser Indemnified Party that arise out of or expenses relate to:
(including court costs i) any breach of any representation or warranty of such Seller contained in Article 3 of this Agreement;
(ii) any breach of any covenant or obligation in this Agreement to be performed by such Seller. With respect to Damages referred to in Section 9.2(b), only the relevant breaching Seller shall be liable for the full amount of the relevant Damages and attorneys' feesthe other Sellers shall not be liable.
(c) Following and subject to the occurrence of the Closing, whether subject to the limitations described in Section 9.1 and Section 9.5, Purchaser shall indemnify, defend, and hold harmless the Sellers and each of their respective heirs and Affiliates (each, an “Seller Indemnified Party” and, collectively, the “Seller Indemnified Parties,” and, collectively with the Purchaser Indemnified Parties, the “Covered Parties,” and each, a “Covered Party”) from and against any and all Damages incurred by such Seller Indemnified Party that arise out of or relate to
(i) any breach of any representation or warranty made by Purchaser in a third party action Article 5 of this Agreement or in an action to enforce this any other Transaction Agreement), claims, demands, suits, proceedings ; or
(whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, the Collateral, Lender's status by virtue of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with ii) any Legal Requirements, the breach by Borrower of any terms covenant or obligation in this Agreement to be performed by Purchaser.
(d) For the avoidance of doubt, neither Party shall be liable under this Agreement and provisions any Transaction Agreement in respect of the Loan Documentsany loss of profit, the sale loss of revenue, loss of contract, loss of goodwill, loss of claim, indirect Damages, punitive Damages or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses")consequential Damages, except to the extent that any of the foregoing Losses described in this clause (a) such Damages are caused by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed payable to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such terminationThird Party.
Appears in 1 contract
2Indemnification. Borrower will INDEMNIFYFrom and after the Closing Date, PROTECTthe Seller shall indemnify and hold harmless the Purchasers and/or at the Purchaser's absolute discretion, HOLD HARMLESS, and defend Lender, its successors, assigns and shareholders (including corporate shareholders), and the directors, officers, employees, servants and agents of any of the foregoing, forTarget Companies, from and against: (a) against any and all liabilityLosses suffered or incurred by the Purchasers, damage, penalties, the Target Companies and their Affiliated Companies resulting or fines, loss, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce arising from any breach by the Seller of the Guarantees under Section 7.12 of this Agreement. The Seller shall indemnify and hold harmless the Purchasers and/or, at the Purchasers' absolute discretion, any of the Target Companies from and against any Taxes unpaid which have been or will be imposed on any of the Target Companies attributable based on an "as-if assessment" to the period up to and including or resulting from action taken on or prior to the Closing Date; any tax matters disclosed in Annex 10.2(2), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines ; and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and any liability arising from or brought in connection with any breach of any Guarantee contained in Section 7.12 above. The Guarantees set forth in Section 7.12 and the Timeshare Projectcovenants contained in this Agreement shall survive the Closing Date and consequently the right to present claims for breach of such Guarantees and covenants and the obligation to indemnify accordingly shall remain in force with respect to the Guarantees set forth in Section 7.12 relating to taxes, for a period of 60 days following the Collateral, Lender's status by virtue expiration of the Loan Documentsapplicable statute of limitations. Indemnification made by the Seller shall be made free and clear and without set-off, sales of Timeshare Inventory or the financing of such salescounterclaim, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower deduction of any terms and provisions Tax, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature. If at any time any applicable law requires the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower Seller (or any other Person by virtue member of the VAT group) to make any such deduction or withholding from any such payment, the sum due from the Seller in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the LoanPurchaser receives a net sum equal to the sum which it would have received if no deduction or withholding been required to be made, provided that the liability of the Seller to gross-up under this clause shall be reduced or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except extinguished to the extent that the Purchaser or the respective Target Company has realized any benefits by deduction, rebate, allowance, credit or other relief (e.g. in the case of a prolongation of amortization or depreciation periods or higher depreciation allowances) in respect of the foregoing Losses described in this clause (a) are caused by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory circumstances giving rise to the indemniteeliability to make the payment, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute that the original amount which the Seller is liable to pay is determined on a basis which already reflects the impact of any such deduction or defend such action with counsel reasonably acceptable withholding. Subject to Lender. No termination the Purchasers' right to offset for validly existing claims, the Seller shall be entitled to all refunds of this Agreement Taxes received by the Target Companies attributable to any taxable period ending prior to or at the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such terminationClosing Date.
Appears in 1 contract
Sources: Sale and Transfer Agreement
2Indemnification. Borrower will INDEMNIFY(a) From and after the Closing, PROTECTsubject to the other provisions of this Article VIII, HOLD HARMLESSthe Company Securityholders, severally and not jointly and, subject to Section 8.7(d), pro rata in accordance with each such Company Securityholder’s Pro Rata Share, shall indemnify Parent for, and defend Lenderand hold Parent harmless from and against, its successorsany and all Losses actually suffered, assigns and shareholders (including corporate shareholders)paid or incurred by Parent, the Surviving Corporation, the Subsidiaries of Parent and the Company and their respective officers, directors, officersagents, employees, servants attorneys and agents employees as a result of or related to:
(i) any breach of any of the foregoingrepresentations and warranties of the Company set forth in this Agreement;
(ii) any breach of any covenant or agreement of the Company set forth in this Agreement;
(iii) (1) any error in the Payment Schedule or (2) any Claim made by a Company Securityholder against Parent, Merger Sub, the Surviving Corporation or any Acquired Entity (or any director or officer thereof) in connection with this Agreement or the Other Transaction Agreements or the transactions contemplated by this Agreement or the Other Transaction Agreements, except for any Claim for indemnification pursuant to Section 8.2(b); and
(iv) any Pre-Closing Tax Obligation, any Unpaid Company Expenses in excess of the Estimated Unpaid Company Expenses and 50% of any Transfer Taxes.
(a) From and after the Closing, subject to the other provisions of this Article VIII, Parent shall indemnify the Company Securityholders, pro rata in accordance with their respective Pro Rata Share, for, and defend and hold each of them harmless from and against: (a) , any and all liabilityLosses actually suffered, damagepaid or incurred by the Company Securityholders and their respective officers, penaltiesdirectors, or finesagents, loss, costs or expenses attorneys and employees (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it excluding the Company) as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, the Collateral, Lender's status by virtue related to:
(i) any breach of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described representations and warranties of Parent or Merger Sub set forth in this clause Agreement; and
(a) are caused by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (bii) any and all brokers' commissions breach of any covenant or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action Parent or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained Merger Sub set forth in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such terminationAgreement.
Appears in 1 contract
2Indemnification. Borrower will INDEMNIFY▇▇▇▇▇▇▇▇ agrees to indemnify, PROTECT, HOLD HARMLESS, defend and defend Lender, its successors, assigns and shareholders (including corporate shareholders), hold Collateral Agent and the Lenders and their respective directors, officers, employees, servants and agents of agents, attorneys, or any of other Person affiliated with or representing Collateral Agent or the foregoingLenders (each, for, from and an “Indemnified Person”) harmless against: (a) all obligations, demands, claims, and liabilities (collectively, “Claims”) asserted by any other party in connection with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan Documents; and (b) all losses or Lenders’ Expenses incurred, or paid by Indemnified Person in connection with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan Documents between Collateral Agent, and/or the Lenders and Borrower (including reasonable and documented out-of-pocket attorneys’ fees and expenses), except for Claims and/or losses directly caused by such Indemnified Person’s gross negligence or willful misconduct. Borrower hereby further indemnifies, defends and holds each Indemnified Person harmless from and against any and all liabilityliabilities, damageobligations, losses, damages, penalties, or finesactions, lossjudgments, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement)suits, claims, demandscosts, suitsexpenses and disbursements of any kind or nature whatsoever (including the fees and disbursements of counsel for such Indemnified Person) in connection with any investigative, proceedings response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnified Person shall be designated a party thereto and including any such proceeding initiated by or on behalf of ▇▇▇▇▇▇▇▇, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (whether civil other than any broker retained by Collateral Agent or criminal)Lenders) asserting any right to payment for the transactions contemplated hereby which may be imposed on, orders, judgments, penalties, fines and other sanctions whatsoever incurred by or asserted against it such Indemnified Person as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, transactions contemplated hereby and the Collateral, Lender's status by virtue use or intended use of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions proceeds of the Loan Documentsloan proceeds except for liabilities, the sale or financing of Timeshare Inventoryobligations, the creation of liens losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are disbursements directly caused by Lender's such Indemnified Person’s gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection misconduct. This Section 12.2 shall not apply with the Loan, respect to Taxes other than those owed to ▇▇▇▇ Financial any Taxes that represent losses, claims, damages or liability arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such terminationnon-Tax claim.
Appears in 1 contract
Sources: Loan and Security Agreement (Scholar Rock Holding Corp)
2Indemnification. Borrower will INDEMNIFYagrees to indemnify, PROTECT, HOLD HARMLESS, defend and defend Lender, its successors, assigns and shareholders (including corporate shareholders), hold Collateral Agent and the Lenders and their respective directors, officers, employees, servants and agents of agents, attorneys, or any of other Person affiliated with or representing Collateral Agent or the foregoingLenders (each, for, from and an “Indemnified Person”) harmless against: (a) all obligations, demands, claims, and liabilities (collectively, “Claims”) asserted by any other party in connection with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan Documents; and (b) all losses or Lenders’ Expenses incurred, or paid by Indemnified Person in connection with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan Documents between Collateral Agent, and/or the Lenders and Borrower (including reasonable and documented out-of-pocket attorneys’ fees and expenses), except for Claims and/or losses directly caused by such Indemnified Person’s gross negligence or willful misconduct. Borrower hereby further indemnifies, defends and holds each Indemnified Person harmless from and against any and all liabilityliabilities, damageobligations, losses, damages, penalties, or finesactions, lossjudgments, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement)suits, claims, demandscosts, suitsexpenses and disbursements of any kind or nature whatsoever (including the fees and disbursements of counsel for such Indemnified Person) in connection with any investigative, proceedings response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnified Person shall be designated a party thereto and including any such proceeding initiated by or on behalf of Borrower, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (whether civil other than any broker retained by Collateral Agent or criminal)Lenders) asserting any right to payment for the transactions contemplated hereby which may be imposed on, orders, judgments, penalties, fines and other sanctions whatsoever incurred by or asserted against it such Indemnified Person as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, transactions contemplated hereby and the Collateral, Lender's status by virtue use or intended use of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions proceeds of the Loan Documentsloan proceeds except for liabilities, the sale or financing of Timeshare Inventoryobligations, the creation of liens losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are disbursements directly caused by Lender's such Indemnified Person’s gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such terminationmisconduct.
Appears in 1 contract
Sources: Loan and Security Agreement (Kala Pharmaceuticals, Inc.)
2Indemnification. Borrower will INDEMNIFY(a) The Stockholders, PROTECTsubject to the limitations set forth in this Article VIII and the terms and conditions of the Escrow Agreement, HOLD HARMLESSshall, jointly and severally, up to the amount from time to time remaining in the Indemnity Escrow Fund, and severally and not jointly thereafter, based upon each of the Stockholders’ allocable portion of such claim set forth in the Funds Allocation as revised pursuant to Section 2.11, indemnify and defend Lender, Parent and its successors, assigns and shareholders Affiliates (including corporate shareholders)following the Closing, the Surviving Corporation) and the directorstheir respective managers, officers, directors, employees, servants agents, successors and agents assigns (the “Parent Indemnified Parties”) against, and shall hold them harmless from, any and all costs, losses, damages, liabilities, demands, actions or causes of action (including first-party and third-party claims), charges, Taxes (without duplication), interest, judgments, awards, sanctions, fines, penalties, settlements, and reasonable fees and expenses (including reasonable legal, accounting and investigation fees and expenses) in connection with any of the foregoingforegoing or similar damages incurred, forsustained or suffered by them (collectively, and whether or not involving a first-party or third-party claim, “Losses”) related to, resulting from and against: or arising out of:
(ai) any and all liability, damage, penaltiesbreach of, or finesinaccuracy in, loss, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, the Collateral, Lender's status by virtue any of the Loan Documents, sales of Timeshare Inventory representations or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions warranties of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens Company contained in Article III both when made and security interests, the terms as of the Loan Documents or the transactions related theretoClosing Date, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue as though made on and as of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged Closing Date ("Losses"), except to the extent that such representations and warranties expressly speak as of a specific date other than the date of this Agreement, in which case a breach or inaccuracy as of such date) or any closing certificate delivered by the Company pursuant to this Agreement, in each case without giving effect to any qualifications as to materiality, Material Adverse Effect or similar qualifications contained in such representations and warranties;
(ii) the breach of any covenant, undertaking, agreement or other obligation of the foregoing Losses described Company (prior to Closing) or Holder Representative contained in this clause Agreement;
(aiii) are caused the (A) calculation of, the components of, and determination by Lender's gross negligence the Company or willful misconduct Holder Representative of the Funds Allocation or first accrue after foreclosure the allocation of the Closing Cash Purchase Price, the Additional Merger Consideration or deed in lieu of foreclosure; any other amounts payable to any Stockholder pursuant to this Agreement or the Transaction Documents, or (bB) any and all brokers' commissions or finders' fees or other costs Seller Transaction Expenses in excess of similar type by those included in the calculation of the Final Purchase Price (including any party indemnification obligations of the Company in connection with the Loan, other than those owed to favor of ▇▇▇▇▇▇▇▇ Financial arising from the acts of Lender; and ▇▇▇▇▇);
(civ) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnityclaims from any Stockholder (A) asserting or attempting to exercise any dissent and appraisal rights, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory including pursuant to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope Section 262 of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute DGCL, or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such termination.
Appears in 1 contract
2Indemnification. (a) Borrower will INDEMNIFYhereby agrees to promptly pay (i) all costs and expenses of Agent (including, PROTECTwithout limitation, HOLD HARMLESSthe fees, costs and expenses of counsel to, and defend Lenderindependent appraisers and consultants retained by Agent) in connection with the examination, review, due diligence investigation, documentation, negotiation, closing and syndication of the transactions contemplated by the Financing Documents, in connection with the performance by Agent of its successorsrights and remedies under the Financing Documents and in connection with the continued administration of the Financing Documents including (A) any amendments, assigns modifications, consents and shareholders waivers to and/or under any and all Financing Documents, and (B) any periodic public record searches conducted by or at the request of Agent (including, without limitation, title investigations, UCC searches, fixture filing searches, judgment, pending litigation and tax lien searches and searches of applicable corporate, limited liability, partnership and related records concerning the continued existence, organization and good standing of certain Persons); (ii) without limitation of the preceding clause (i), all costs and expenses of Agent in connection with the creation, perfection and maintenance of Liens pursuant to the Financing Documents; (iii) without limitation of the preceding clause (i), all costs and expenses of Agent in connection with (A) protecting, storing, insuring, handling, maintaining or selling any Collateral, (B) any litigation, dispute, suit or proceeding relating to any Financing Document, and (C) any workout, collection, bankruptcy, insolvency and other enforcement proceedings under any and all of the Financing Documents; and (iv) all costs and expenses incurred by Agent or Lenders in connection with any litigation, dispute, suit or proceeding relating to any Financing Document and in connection with any workout, collection, bankruptcy, insolvency and other enforcement proceedings under any and all Financing Documents, whether or not Agent or Lenders are a party thereto.
(b) Borrower hereby agrees to indemnify, pay and hold harmless Agent and ▇▇▇▇▇▇▇ and the officers, directors, employees, trustees, agents, investment advisors, collateral managers, servicers, and counsel of Agent and Lenders (collectively called the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including corporate shareholders)the fees and disbursements of counsel for such Indemnitee) in connection with any investigative, response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnitee shall be designated a party thereto and including any such proceeding initiated by or on behalf of a Credit Party, and the directorsreasonable expenses of investigation by engineers, officersenvironmental consultants and similar technical personnel and any commission, employeesfee or compensation claimed by any broker (other than any broker retained by Agent or Lenders) asserting any right to payment for the transactions contemplated hereby, servants and agents of any of the foregoingwhich may be imposed on, for, from and against: (a) any and all liability, damage, penalties, incurred by or fines, loss, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it such Indemnitee as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, transactions contemplated hereby and the Collateral, Lender's status by virtue use or intended use of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions proceeds of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses")Credit Facilities, except that Borrower shall have no obligation hereunder to an Indemnitee with respect to any liability resulting from the extent that any of the foregoing Losses described in this clause (a) are caused by Lender's gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction. To the extent that the undertaking set forth in the immediately preceding sentence may be unenforceable, Borrower shall contribute the maximum portion which it is permitted to pay and satisfy under applicable Law to the payment and satisfaction of all such indemnified liabilities incurred by the Indemnitees or first accrue after foreclosure or deed in lieu any of foreclosure; (b) them. No Indemnitee shall be liable for any and all brokers' commissions or finders' fees damages arising from the use by unintended recipients of any information or other costs of similar type materials distributed by any party it through telecommunications, electronic or other information transmission systems in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Financing Documents shall affect or impair the indemnification provisions contained transactions contemplated hereby or thereby.
(c) Notwithstanding any contrary provision in this Agreement, the obligations of Borrower under this Section 8.2 and all such provisions 12.2 shall survive such terminationthe payment in full of the Obligations and the termination of this Agreement. NO INDEMNITEE SHALL BE RESPONSIBLE OR LIABLE TO ANY CREDIT PARTY OR TO ANY OTHER PARTY TO ANY FINANCING DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
Appears in 1 contract
Sources: Credit and Security Agreement (Ocular Therapeutix, Inc)
2Indemnification. Borrower will INDEMNIFY, PROTECT, HOLD HARMLESS, and defend LenderAdministrative Agent and ▇▇▇▇▇▇▇, its theirs successors, assigns and shareholders (including corporate shareholders), and the directors, officers, employees, servants and agents of any of the foregoing, for, from and against: (a) any and all liability, damage, penalties, or fines, loss, costs or expenses (including court costs and reasonable and documented attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare ProjectProperty, the Collateral, Administrative Agent's and each Lender's ’s status by virtue of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender Administrative Agent is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, the failure of BVU to abide by its obligations under the WARN Act or any act or omission of Borrower or an Agentagent, or their respective employees or agents, whether actual or alleged ("“Losses"”), except to the extent that any of the foregoing Losses described in this clause (a) are caused by LenderAdministrative Agent's or ▇▇▇▇▇▇’s gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of BN 72497947v7 Administrative Agent or any Lender; and (c) any mechanics liens filed against Phase IIIthe Property. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At LenderAdministrative Agent's option, Lender may Administrative Agent may, on behalf of ▇▇▇▇▇▇▇, at Borrower▇▇▇▇▇▇▇▇'s expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to LenderAdministrative Agent. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such termination.
Appears in 1 contract
Sources: Loan and Security Agreement (Bluegreen Vacations Holding Corp)
2Indemnification. Borrower will INDEMNIFY(a) From and at all times after the date of this Agreement, PROTECTthe Purchaser and the Seller shall, HOLD HARMLESSjointly and severally, to the fullest extent permitted by law and defend Lenderto the extent provided herein, its successorsdefend, assigns indemnify and shareholders hold harmless the Escrow Agent and each director, officer, employee, attorney, agent and affiliate of the Escrow Agent (collectively, the “Indemnified Parties”) against any and all actions, claims (whether or not valid), losses, damages, liabilities, costs and expenses of any kind or nature whatsoever (including corporate shareholders)reasonable attorneys’ fees, costs and the directors, officers, employees, servants and agents of expenses) incurred by or asserted against any of the foregoing, for, Indemnified Parties from and against: (a) any and all liability, damage, penalties, or fines, loss, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought after the date hereof in connection with the Timeshare Project, the Collateral, Lender's status Escrow Agent’s good faith acceptance of and performance of its duties and obligations under this Agreement or which arise directly or indirectly by virtue of the Loan DocumentsEscrow Agent’s undertaking to serve as Escrow Agent hereunder; provided, sales of Timeshare Inventory or however, that no Indemnified Party shall have the financing of such sales, in either case, in violation of or in noncompliance with right to be indemnified hereunder for any Legal Requirements, the breach by Borrower of any terms and provisions of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower liability (or any other Person cost or expense related to such liability, including attorneys’ fees, costs and expenses) finally determined by virtue a court of competent jurisdiction, subject to no further appeal, to have resulted from the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are caused by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemniteeIndemnified Party. If any such action or claim shall be brought or asserted against any Indemnified Party, using such Indemnified Party shall promptly notify the Purchaser and the Seller in writing, and the Purchaser and the Seller shall have the right to assume the defense thereof, including the employment of counsel and the payment of all expenses. Such Indemnified Party shall, in its sole discretion, have the right to employ separate counsel in any such action and to participate in the defense thereof, and the fees and expenses of such counsel shall be paid by such Indemnified Party unless (i) the Purchaser and the Seller mutually agree in writing to pay such fees and expenses, (ii) both the Purchaser and the Seller shall fail to assume the defense of such action or proceeding or shall fail, in the reasonable discretion of such Indemnified Party, to employ counsel reasonably satisfactory to the indemniteeIndemnified Party in any such action or proceeding, or (iii) the defense of named parties to any legal such action or proceeding (including any impleaded parties) include both the Indemnified Party, on the one hand, and the Purchaser or the Seller, on the other hand, and the Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Purchaser or the Seller. All such Person fees and expenses payable by the Purchaser and the Seller pursuant to the foregoing sentence shall be a partypaid from time to time as incurred, both in advance of and after the final disposition of such action or claim. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope All of the indemnification contained in foregoing losses, damages, costs and expenses of the Indemnified Parties shall be payable upon demand of such Indemnified Party, jointly and severally, by the Seller and the Purchaser. The obligations of the Purchaser and the Seller under this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No 4.2 shall survive any termination of this Agreement and the resignation or removal of the Escrow Agent.
(b) The Parties agree that neither the payment by the Purchaser and the Seller of any claim by the Escrow Agent for indemnification hereunder nor the disbursement of any amounts to the Escrow Agent from the Escrow Fund in respect of a claim by the Escrow Agent for indemnification shall impair, limit, modify, or affect, as between the Purchaser and the Seller, the respective rights and obligations of the Seller, on the one hand, and the Purchaser, on the other Loan Documents shall affect or impair hand, under this Agreement. The Purchaser and the Seller agree solely between themselves that any obligation for indemnification provisions contained in under this Section 8.2 4.2 (or for fees and all expenses of the Escrow Agent described in Section 4.1) shall be borne by the Party or Parties determined by an arbitrator or a court of competent jurisdiction to be responsible for causing the loss, damage, liability, cost or expense for which the Escrow Agent is entitled to indemnification or, if no such provisions shall survive such terminationdetermination is made, then one-half by the Purchaser and one-half by the Seller.
Appears in 1 contract
2Indemnification. Borrower will INDEMNIFY, PROTECT, HOLD HARMLESS, and defend Lender, its successors, assigns and shareholders (including corporate shareholders), and the directors, officers, employees, servants and agents of any of the foregoing, for, from and against: (a) From and after the Closing, subject to the limitations set forth in this Article IX, Seller shall indemnify, defend and hold harmless each Buyer Indemnitee from and against any and all liabilitySuits, damageOrders, Liens, losses, damages, Liabilities, penalties, or interest and expenses, bonds, dues, assessments, fines, losspenalties, Taxes, fees, costs or expenses (including court costs of investigation, defense and attorneys' fees, whether incurred in a third party action or in an action to enforce enforcement of this Agreement), claimsexpenses or amounts paid in settlement (in each case, demands, suits, proceedings including reasonable attorneys’ and experts’ fees and expenses) (whether civil or criminal“Losses”), ordersincurred by such Buyer Indemnitee that are caused by:
(i) (x) any breach of, judgmentsor inaccuracy in, penaltiesany Seller Fundamental Representation or (y) any breach of, fines or inaccuracy in, any other representation or warranty set forth in Article III or the Seller Closing Certificate, in each case, as qualified by the Seller Disclosure Schedules (in each case, assuming that all qualifications contained in Article III or the Seller Closing Certificate, in each case, as qualified by the Seller Disclosure Schedules, as to materiality, including each qualifying reference to the defined term “Material Adverse Effect” and other sanctions whatsoever asserted against it as a result the words “material” and “materially” and all similar phrases and words were deleted therefrom, provided, however, that the foregoing deletion shall not apply to (A) Section 3.7(b), (B) Section 3.8(b), (C) Section 3.18, (D) the definition of actions, claims, counterclaims, fines, penalties “Material Adverse Effect” or otherwise and arising from “Permitted Lien” or brought in connection with (E) the Timeshare Project, the Collateral, Lender's status by virtue use of the Loan Documents, sales of Timeshare Inventory term “Material Contract”);
(ii) (x) any breach or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach non-performance by Borrower Seller of any terms and provisions of the Loan Documents, the sale its covenants or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are caused by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification agreements contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect Restrictive Covenant Agreement, which by their terms contemplate performance after the Closing and (y) any breach or impair the indemnification provisions non-performance by Seller of any of its covenants or agreements contained in this Section 8.2 Agreement, which by their terms contemplate performance before or at the Closing;
(iii) any Buyer Indemnified Taxes and any sales and use or similar Taxes of the Acquired Companies (including, for the avoidance of doubt, any such Taxes or payments in connection with any voluntary disclosure agreement or similar program and related filings that are or could be filed) for any U.S. federal, state, local or foreign jurisdiction for any Pre-Closing Tax Period (or any portion thereof);
(iv) those matters set forth on Schedule 9.2(a)(iv); or
(v) any Indebtedness of any Acquired Company outstanding as of the Closing or any Transaction Expenses.
(b) From and after the Closing, subject to the limitations set forth in this Article IX, Buyer shall indemnify, defend and hold harmless each Seller Indemnitee from and against any and all Losses incurred by such provisions shall survive such terminationSeller Indemnitee that are caused by:
(i) any breach of, or inaccuracy in, any representation or warranty set forth in Article IV or the Buyer Closing Certificate (in each case, assuming that all qualifications contained in Article IV or the Buyer Closing Certificate as to materiality, including each qualifying reference to the defined term “Material Adverse Effect” and the words “material” and “materially” and all similar phrases and words were deleted therefrom); or
(ii) any breach or non-performance by Buyer of any of its covenants or agreements contained in this Agreement.
Appears in 1 contract
Sources: Equity Purchase Agreement
2Indemnification. Borrower will INDEMNIFY(a) Each of the Warrantors hereby agrees and undertakes to jointly with the other Warrantors and severally indemnify, PROTECTdefend and hold harmless Purchaser and its affiliates and their respective officers, HOLD HARMLESSduly authorized representatives, directors, duly engaged agents, employees and defend Lenderpartners (each, its successorsan “Indemnified Party”) from and against any and all losses, assigns and shareholders damages, liabilities, claims, diminution in the value of Company, the business of Company or the Indemnified Party’s investment in Company, proceedings, costs, expenses (including corporate shareholdersbut not limited to the fees, disbursements and other charges of counsel incurred by any Indemnified Party in any action between any Warrantor and any Indemnified Party, or any action which is between any Indemnified Party and any third party and is related to any Warrantor, in connection with any investigation or evaluation of a claim or otherwise), penalties and interest (collectively, the directors, officers, employees, servants and agents “Losses”) resulting directly or indirectly from or arising directly or indirectly out of any breach by any Warrantor of any of the foregoingWarrantors’ representations and warranties or other representations, for, from and against: (a) covenants or agreements in this Agreement or any and all liability, damage, penaltiesother documents for the 65 MW Transaction, or fines, loss, costs default by any Warrantor of any documents or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought agreements in connection with the Timeshare Project, Liens on the Collateral, Lender's status by virtue of the Loan Documents, sales of Timeshare Inventory Property or the financing of such sales, underlying loan documents in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are caused by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; connection therewith.
(b) The obligations of each of the Warrantors (except for Company) under this Section 5.2 shall not be reduced, offset, eliminated or subject to contribution by reason of any action or inaction by Company prior to the Closing and all brokers' commissions the closing of the 85 MW Transaction that contributed to any inaccuracy or finders' fees breach giving rise to such obligation, it being understood and agreed that the Warrantors (except for Company), and not Company, shall be responsible for the applicable indemnity obligations under Section 5.2(a). Each of the Warrantors (except for Company) agrees that such party will not seek, nor will any Warrantors (except for Company) be entitled to, reimbursement or other costs contribution from, subrogation to, or indemnification by Company, under its Organizational Documents, this Agreement, applicable Laws or otherwise, in respect of similar type by any party amounts due from the Warrantors (except for Company) to any Indemnified Party under this Section 5.2 or otherwise in connection with this Agreement. Each of the Loan, other than those owed Warrantors (except for Company) further agrees not to ▇▇▇▇ Financial arising from make any claims against any directors and officers insurance policy maintained or to be maintained by or for the acts benefit of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered Company in respect of amounts due by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory Warrantors (except for Company) to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in Indemnified Party under this Section 8.2 to the extent Borrower does not promptly prosecute 5.2 or defend such action otherwise in connection with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such terminationAgreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (BIT Mining LTD)
2Indemnification. Borrower will INDEMNIFYagrees to indemnify, PROTECT, HOLD HARMLESS, defend and defend Lender, its successors, assigns and shareholders (including corporate shareholders), hold Collateral Agent and the Lenders and their respective directors, officers, employees, servants and agents of agents, attorneys, or any of other Person affiliated with or representing Collateral Agent or the foregoingLenders (each, for, from and an “Indemnified Person”) harmless against: (a) all obligations, demands, claims, and liabilities (collectively, “Claims”) asserted by any other party in connection with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan Documents; and (b) all losses or Lenders’ Expenses incurred, or paid by Indemnified Person in connection with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan Documents between Collateral Agent, and/or the Lenders and Borrower (including reasonable and documented attorneys’ fees and expenses), except for Claims and/or losses directly caused by such Indemnified Person’s gross negligence or willful misconduct. Borrower hereby further indemnifies, defends and holds each Indemnified Person harmless from and against any and all liabilityliabilities, damageobligations, losses, damages, penalties, or finesactions, lossjudgments, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement)suits, claims, demandscosts, suitsexpenses and disbursements of any kind or nature whatsoever (including reasonable and documented fees and disbursements of counsel for such Indemnified Person) in connection with any investigative, proceedings response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnified Person shall be designated a party thereto and including any such proceeding initiated by or on behalf of Borrower, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (whether civil other than any broker retained by Collateral Agent or criminal)Lenders) asserting any right to payment for the transactions contemplated hereby which may be imposed on, orders, judgments, penalties, fines and other sanctions whatsoever incurred by or asserted against it such Indemnified Person as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, transactions contemplated hereby and the Collateral, Lender's status by virtue use or intended use of the Loan Documentsloan proceeds except for liabilities, sales of Timeshare Inventory or the financing of such salesobligations, in either caselosses, in violation of or in noncompliance with any Legal Requirementsdamages, the breach by Borrower of any terms penalties, actions, judgments, suits, claims, costs, expenses and provisions of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are disbursements directly caused by Lender's such Indemnified Person’s gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such terminationmisconduct.
Appears in 1 contract
2Indemnification. Borrower will INDEMNIFYagrees to and shall defend, PROTECTprotect, HOLD HARMLESSpay, indemnify and defend Lender, hold Bank and its successors, assigns and shareholders (including corporate shareholders), and the directors, officers, employees, servants and agents of any of the foregoingagents, forattorneys, from and against: (a) any and all liability, damage, penalties, or fines, loss, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, the Collateral, Lender's status by virtue of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loanaffiliated with or representing Bank (each, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a“Indemnified Person”) are caused by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) harmless from and against any and all brokers' commissions liabilities, obligations, losses, damages, demands, interest, penalties, actions, proceedings, judgments, suits, claims, costs, expenses (including, without limitation, Bank Expenses) and disbursements of any kind or finders' nature whatsoever (including, without limitation, the reasonable fees or other costs and disbursements of similar type by any party counsel for the Indemnified Persons, including, without limitation, in connection with any investigative, administrative or judicial proceeding, or settlement, whether or not the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request Indemnified Persons shall be designated by a party thereto, or otherwise), which may be imposed on, paid, suffered or incurred by, or asserted against any Indemnified Person covered by the above agreement of indemnity(whether direct, Borrower will undertakeindirect or consequential, and whether based on any federal, state or local laws, rules, regulations or other statutory regulations, including, without limitation, securities and commercial laws, intellectual property laws, ERISA and Environmental Laws, statutes and regulations, under common law or at its own cost and expenseequitable cause, or on behalf of such indemnitee, using counsel reasonably satisfactory contract or otherwise) in any manner relating to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination arising out of this Agreement or any or all of the other Loan Documents (and any amendment, waiver, renegotiation, restructuring, or consent relating hereto or thereto), or the Collateral or any other assets or property of Borrower, or any act, event or transaction related or attendant hereto or thereto, the making and the management of any Credit Extension or the use or intended use of the proceeds of any or all Credit Extensions; provided, that Borrower shall affect not have any obligation to any Indemnified Person hereunder for matters to the extent caused by or impair resulting from the indemnification provisions contained willful misconduct or gross negligence of such Indemnified Person as finally determined by a court of appropriate jurisdiction in a non-appealable judgment (in which such Indemnified Person and Bank have had a reasonable opportunity to be heard). To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all matters incurred by the Indemnified Persons. Any such amount identified in this Section 8.2 incurred by any of the Indemnified Persons shall be paid to the applicable Indemnified Persons on demand, together with interest thereon at the Default Rate from the day after such demand until paid by Borrower, be added to the Obligations and all such be secured by the Collateral. The provisions of and undertakings and indemnifications set out in this Section 12.2 shall survive such terminationthe payment in full of the Obligations (other than inchoate indemnification and reimbursement obligations and other obligations which, by their terms, survive termination of this Agreement) and the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Mobivity Holdings Corp.)
2Indemnification. Borrower will INDEMNIFY, PROTECT, HOLD HARMLESSSeller shall, and hereby agrees to, indemnify, defend Lenderand hold harmless Administrative Agent, its successorseach Buyer, assigns any Affiliate of Administrative Agent, any Affiliate of any Buyer and shareholders (including corporate shareholders), and the their respective directors, officers, employees, servants agents and agents of any of the foregoing, for, employees from and against: (a) against any and all liability, damage, penalties, or fines, loss, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement)losses, claims, demandsdamages, suitsliabilities, proceedings deficiencies, judgments or expenses incurred by any of them (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, the Collateral, Lender's status by virtue of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are caused by Lender's it is finally judicially determined to have resulted from their own gross negligence or willful misconduct misconduct) as a consequence of, or first accrue after foreclosure arising out of or deed by reason of any litigation, investigations, claims or proceedings which arise out of or are in lieu of foreclosureany way related to, (i) this Agreement or any other Program Agreement or the transactions contemplated hereby or thereby, (ii) Seller’s servicing practices or procedures; (biii) any actual or proposed use by Seller of the proceeds of the Purchase Price, and all brokers' commissions (iv) any Default, Event of Default or finders' any other breach by Seller of any of the provisions of this Agreement or any other Program Agreement, including amounts paid in settlement, court costs and reasonable fees or other costs and disbursements of similar type by any party counsel incurred in connection with any such litigation, investigation, claim or proceeding or any advice rendered in connection with any of the Loanforegoing. If and to the extent that any Obligations are unenforceable for any reason, other than those owed Seller hereby agrees to ▇▇▇▇ Financial arising from make the acts of Lender; maximum contribution to the payment and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf satisfaction of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to Obligations which such Person shall be a partyis permissible under applicable law. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained Seller’s obligations set forth in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No 11.02 shall survive any termination of this Agreement or and each other Program Agreement and the payment in full of the Obligations, and are in addition to, and not in substitution of, any other Loan Documents shall affect or impair the indemnification provisions contained of its obligations set forth in this Section 8.2 Agreement or otherwise. In addition, Seller shall, upon demand, pay to Administrative Agent and the Buyers all such provisions shall survive such terminationcosts and expenses (including the reasonable fees and disbursements of counsel) paid or incurred by Administrative Agent and Buyers in (i) enforcing or defending its rights under or in respect of this Agreement or any other Program Agreement, (ii) collecting the Purchase Price outstanding, (iii) foreclosing or otherwise collecting upon any Repurchase Assets and (iv) and obtaining any legal, accounting or other advice in connection with any of the foregoing.
Appears in 1 contract
Sources: Repurchase Agreement (PennyMac Financial Services, Inc.)
2Indemnification. Borrower will INDEMNIFY(a) From and after the Closing Date, PROTECT, HOLD HARMLESSthe Seller Parties shall jointly and severally indemnify and hold harmless the Buyer Parties and their Affiliates, and defend Lender, its successors, assigns and shareholders (including corporate shareholders), and the their Affiliates’ respective directors, officers, employees, servants agents, successors and agents of any of the foregoing, for, permitted assigns from and against: (a) against any and all liability, damage, penalties, or fines, loss, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement)losses, claims, demands, suits, proceedings (whether civil or criminal), ordersdamages, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise Taxes, expenses and arising from or brought Liabilities, including any lost profits, lost revenue, investigative and legal expenses incurred in connection with the Timeshare Project, the Collateral, Lender's status by virtue of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, and any amounts paid in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related theretosettlement of, any assertion that Lender is a partner pending or joint venturer of Borrower threatened Action (but in any event excluding exemplary or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses")punitive damages, except to the extent that any of the foregoing Losses described in this clause (a) such damages are caused awarded to or recovered by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any a third party in connection with a Third Party Claim) (collectively, “Losses”) arising out of or resulting from (i) the Loanbreach of any representation or warranty of any Seller Party set forth in this Agreement, (ii) the breach of any covenant or agreement of any Seller Party set forth in this Agreement (other than those owed to ▇▇the Non-Compete Undertaking Provisions and Section 6.1), or (iii) the breach by any Seller Party of any Non-Compete Undertaking Provision.
(b) From and after the Closing Date, Mr. ▇▇ Financial shall indemnify and hold harmless the Buyer Parties and their Affiliates, and their Affiliates’ respective directors, officers, employees, agents, successors and permitted assigns from and against any Losses arising out of or resulting from (A) the acts breach of Lender; and any representation or warranty of Mr. Li set forth in this Agreement, or (B) the breach by Mr. Li of any Non-Compete Undertaking Provision.
(c) From and after the Closing Date, the Buyer Parties shall jointly and severally indemnify and hold harmless the Seller Parties and their Affiliates, and their Affiliates’ respective directors, officers, employees, agents, successors and permitted assigns from and against any mechanics liens filed against Phase III. On written request by a Person covered by Losses arising out of or resulting from (i) the above breach of any representation or warranty of any Buyer Party set forth in this Agreement, or (ii) the breach of any covenant or agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained Buyer Party set forth in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination Agreement.
(d) For purposes of this Agreement Agreement, (i) “Indemnifying Party” means the Seller Parties (with respect to Section 8.2(a)), Mr. ▇▇ (with respect to Section 8.2(b)) and the Buyer Parties (with respect to Section 8.2(c)), and (ii) “Indemnified Party” means the Persons entitled to seek indemnification against the applicable Indemnifying Party pursuant to Section 8.2(a), Section 8.2(b) or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such termination.8.2(c), as applicable.
Appears in 1 contract
Sources: Share Purchase Agreement (JOYY Inc.)
2Indemnification. Borrower will INDEMNIFY▇▇▇▇▇▇▇▇ agrees to indemnify, PROTECT, HOLD HARMLESS, defend and defend Lender, its successors, assigns hold each Secured Party and shareholders (including corporate shareholders), and the their respective directors, officers, employees, servants and agents of consultants, agents, attorneys, or any of the foregoingother Person affiliated with or representing such Secured Party (each, for, from and an “Indemnified Person”) harmless against: (a) all obligations, demands, claims, and liabilities (collectively, “Claims”) asserted by any other party in connection with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan Documents; and (b) all losses and Lenders’ Expenses incurred, or paid by Indemnified Person in connection with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan Documents (including reasonable and invoiced out-of-pocket attorneys’ fees and expenses), except, in each case, for Claims and/or losses directly caused by such Indemnified Person’s gross negligence or willful misconduct. Borrower hereby further agrees to indemnify, defend and hold each Indemnified Person harmless from and against any and all liabilityliabilities, damageobligations, losses, damages, penalties, or finesactions, lossjudgments, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement)suits, claims, demandscosts, suitsexpenses and disbursements of any kind or nature whatsoever (including the reasonable and invoiced out-of-pocket fees and disbursements of counsel for such Indemnified Person) in connection with any investigative, proceedings response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnified Person shall be designated a party thereto and including any such proceeding initiated by or on behalf of ▇▇▇▇▇▇▇▇, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (whether civil other than any broker retained by Collateral Agent or criminal)Lenders) asserting any right to payment for the transactions contemplated hereby which may be imposed on, orders, judgments, penalties, fines and other sanctions whatsoever incurred by or asserted against it such Indemnified Person as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, transactions contemplated hereby and the Collateral, Lender's status by virtue use or intended use of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions proceeds of the Loan Documentsloan proceeds except for liabilities, the sale or financing of Timeshare Inventoryobligations, the creation of liens losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are disbursements directly caused by Lender's such Indemnified Person’s gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such terminationmisconduct.
Appears in 1 contract
2Indemnification. Borrower will INDEMNIFY(a) Subject to the terms, PROTECTconditions and limitations set forth in this Agreement, HOLD HARMLESSSeller shall indemnify Buyer and its Affiliates and their respective directors, and defend Lender, its successors, assigns and shareholders (including corporate shareholders), and the directorsmanagers, officers, employees, servants agents, representatives, successors and agents assigns (collectively, the “Buyer Indemnified Parties”) against, and shall hold the Buyer Indemnified Parties harmless from and against, any and all Liabilities, obligations, demands, claims, actions, causes of action, assessments, losses, costs, damages, deficiencies, judgments, Taxes, fines or expenses (whether or not arising out of Third Party Claims), including interest, penalties, reasonable fees and expenses of attorneys, accountants and other consultants and experts and all reasonable amounts paid in investigation, defense or settlement of any of the foregoingforegoing (hereinafter referred to collectively as “Losses”) incurred or sustained by, foror imposed upon, the Buyer Indemnified Parties based upon or arising out of:
(i) any inaccuracy in or breach of any of the representations or warranties of Seller contained in Article V of this Agreement;
(ii) any breach by Seller of, or any failure by Seller to perform, any of its covenants or obligations under this Agreement;
(iii) Fraud by Seller; or
(iv) any Excluded Asset or Excluded Liability.
(b) Subject to the terms, conditions and limitations set forth in this Agreement, Buyer shall indemnify Seller and its Affiliates and their respective directors, managers, officers, employees, agents, representatives, successors and assigns (collectively, the “Seller Indemnified Parties”) against, and shall hold the Seller Indemnified Parties harmless from and against: (a) , any and all liability, damage, penaltiesLosses incurred or sustained by, or fines, loss, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Projectimposed upon, the Collateral, Lender's status by virtue Seller Indemnified Parties based upon or arising out of:
(i) any inaccuracy in or breach of any of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, representations and warranties made by Buyer in either case, in violation of or in noncompliance with Article VI;
(ii) any Legal Requirements, the breach by Borrower of any terms and provisions of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the LoanBuyer of, or any act or omission of Borrower or an Agentfailure by Buyer to perform, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in its covenants or obligations under this clause Agreement;
(a) are caused by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (biii) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of LenderAssumed Liability; and (c) any mechanics liens filed against Phase III. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such termination.or
Appears in 1 contract
Sources: Asset Purchase Agreement (Coherus BioSciences, Inc.)
2Indemnification. Borrower will INDEMNIFY(a) Each of the Warrantors hereby agrees and undertakes to jointly with the other Warrantors and severally indemnify, PROTECTdefend and hold harmless Purchaser and its affiliates and their respective officers, HOLD HARMLESSduly authorized representatives, directors, duly engaged agents, employees and defend Lenderpartners (each, its successorsan “Indemnified Party”) from and against any and all losses, assigns and shareholders damages, liabilities, claims, diminution in the value of Company, the business of Company or the Indemnified Party’s investment in Company, proceedings, costs, expenses (including corporate shareholdersbut not limited to the fees, disbursements and other charges of counsel incurred by any Indemnified Party in any action between any Warrantor and any Indemnified Party, or any action which is between any Indemnified Party and any third party and is related to any Warrantor, in connection with any investigation or evaluation of a claim or otherwise), penalties and interest (collectively, the directors, officers, employees, servants and agents “Losses”) resulting directly or indirectly from or arising directly or indirectly out of any breach by any Warrantor of any of the foregoingWarrantors’ representations and warranties or other representations, for, from and against: (a) covenants or agreements in this Agreement or any and all liability, damage, penaltiesother Transaction document, or fines, loss, costs default by any Warrantor of any documents or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement), claims, demands, suits, proceedings (whether civil or criminal), orders, judgments, penalties, fines and other sanctions whatsoever asserted against it as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought agreements in connection with the Timeshare Project, Liens on the Collateral, Lender's status by virtue of the Loan Documents, sales of Timeshare Inventory Property or the financing of such sales, underlying loan documents in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions of the Loan Documents, the sale or financing of Timeshare Inventory, the creation of liens and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are caused by Lender's gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; connection therewith.
(b) The obligations of each of the Warrantors (except for Company) under this Section 5.2 shall not be reduced, offset, eliminated or subject to contribution by reason of any action or inaction by Company prior to the Closing that contributed to any inaccuracy or breach giving rise to such obligation, it being understood and all brokers' commissions agreed that the Warrantors (except for Company), and not Company, shall be responsible for the applicable indemnity obligations under Section 5.2(a). Each of the Warrantors (except for Company) agrees that such party will not seek, nor will any Warrantors (except for Company) be entitled to, reimbursement or finders' fees contribution from, subrogation to, or other costs indemnification by Company, under its Organizational Documents, this Agreement, applicable Laws or otherwise, in respect of similar type by any party amounts due from the Warrantors (except for Company) to any Indemnified Party under this Section 5.2 or otherwise in connection with this Agreement. Each of the Loan, other than those owed Warrantors (except for Company) further agrees not to ▇▇▇▇ Financial arising from make any claims against any directors and officers insurance policy maintained or to be maintained by or for the acts benefit of Lender; and (c) any mechanics liens filed against Phase III. On written request by a Person covered Company in respect of amounts due by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory Warrantors (except for Company) to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in Indemnified Party under this Section 8.2 to the extent Borrower does not promptly prosecute 5.2 or defend such action otherwise in connection with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such terminationAgreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (BIT Mining LTD)
2Indemnification. Borrower will INDEMNIFYagrees to indemnify, PROTECT, HOLD HARMLESS, defend and defend Lender, its successors, assigns and shareholders (including corporate shareholders), hold Collateral Agent and the Lenders and their respective directors, officers, employees, servants and agents of agents, attorneys, or any of other Person affiliated with or representing Collateral Agent or the foregoingLenders (each, for, from and an “Indemnified Person”) harmless against: (a) all obligations, demands, claims, and liabilities (collectively, “Claims”) asserted by any other party in connection with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan Documents; and (b) all losses or Lenders’ Expenses incurred, or paid by Indemnified Person in connection with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan Documents between Collateral Agent, and/or the Lenders and Borrower (including reasonable and documented out-of-pocket attorneys’ fees and expenses), except for Claims and/or losses directly caused by such Indemnified Person’s gross negligence or willful misconduct. Borrower hereby further indemnifies, defends and holds each Indemnified Person harmless from and against any and all liabilityliabilities, damageobligations, losses, damages, penalties, or finesactions, lossjudgments, costs or expenses (including court costs and attorneys' fees, whether incurred in a third party action or in an action to enforce this Agreement)suits, claims, demandscosts, suitsexpenses and disbursements of any kind or nature whatsoever (including the fees and disbursements of counsel for such Indemnified Person) in connection with any investigative, proceedings response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnified Person shall be designated a party thereto and including any such proceeding initiated by or on behalf of Borrower, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (whether civil other than any broker retained by Collateral Agent or criminal)Lenders) asserting any right to payment for the transactions contemplated hereby which may be imposed on, orders, judgments, penalties, fines and other sanctions whatsoever incurred by or asserted against it such Indemnified Person as a result of actions, claims, counterclaims, fines, penalties or otherwise and arising from or brought in connection with the Timeshare Project, transactions contemplated hereby and the Collateral, Lender's status by virtue use or intended use of the Loan Documents, sales of Timeshare Inventory or the financing of such sales, in either case, in violation of or in noncompliance with any Legal Requirements, the breach by Borrower of any terms and provisions proceeds of the Loan Documentsloan proceeds except for liabilities, the sale or financing of Timeshare Inventoryobligations, the creation of liens losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and security interests, the terms of the Loan Documents or the transactions related thereto, any assertion that Lender is a partner or joint venturer of Borrower or any other Person by virtue of the making of the Loan, or any act or omission of Borrower or an Agent, or their respective employees or agents, whether actual or alleged ("Losses"), except to the extent that any of the foregoing Losses described in this clause (a) are disbursements directly caused by Lender's such Indemnified Person’s gross negligence or willful misconduct or first accrue after foreclosure or deed in lieu of foreclosure; (b) any and all brokers' commissions or finders' fees or other costs of similar type by any party in connection with the Loan, other than those owed to ▇▇▇▇ Financial arising from the acts of Lender; and (c) any mechanics liens filed against Phase IIImisconduct. On written request by a Person covered by the above agreement of indemnity, Borrower will undertake, at its own cost and expense, on behalf of such indemnitee, using counsel reasonably satisfactory to the indemnitee, the defense of any legal action or proceeding to which such Person shall be a party. At Lender's option, Lender may at Borrower's expense prosecute or defend any action within the scope of the indemnification contained in this Section 8.2 to the extent Borrower does not promptly prosecute or defend such action with counsel reasonably acceptable to Lender. No termination of this Agreement or the other Loan Documents shall affect or impair the indemnification provisions contained in this Section 8.2 and all such provisions shall survive such termination.
Appears in 1 contract
Sources: Loan and Security Agreement (Scholar Rock Holding Corp)