Buyer’s Indemnification of Seller. Subject to Section 15.4, from and after the Closing, Buyer shall indemnify, defend, and hold harmless Seller from and against all Liabilities asserted against, resulting to, imposed upon, or incurred by Seller to the extent resulting from or related to any (a) misrepresentation or breach of any of Buyer’s or TCI’s representations or warranties contained in Article XIII of this Agreement or elsewhere in this Agreement or in any document or instrument delivered by Buyer or TCI to Seller or any Unit Recipient at the Closing, (b) breach by Buyer, TCI or any Permitted Title Nominee of, or a default by Buyer, TCI or any Permitted Title Nominee under, any of the provisions of this Agreement or any other document or instrument delivered by Buyer, TCI or any Permitted Title Nominee at the Closing; (c) any third-party claims or actions asserted or brought against Seller based upon any breach or alleged breach by Buyer or a Permitted Title Nominee of, or a default or alleged default by Buyer or a Permitted Title Nominee under, the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related to the Developments occurring after the Closing or any other liabilities under the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related to the Developments arising out of acts or omissions of Buyer or any Permitted Title Nominee occurring after the Closing; (d) any third-party claims or actions for property damage or personal injury, or any other third party tort claims, asserted or brought against Seller based upon Buyer’s, any Permitted Title Nominee’s or any property manager’s acts or omissions relating to the Property, which acts or omissions occurred after the Closing; or (e) any breach by Buyer of, or a default by Buyer under, any obligation of Buyer under this Agreement related to the Exchange Units or the Installment Notes. Notwithstanding the foregoing, no claim may be asserted or suit instituted seeking indemnification (i) pursuant to this Section 15.3, with respect to any indirect, consequential, exemplary, incidental punitive or special damages suffered by Seller or any Unit Holder, (ii) pursuant to clauses (a) through (d) above only, unless a written notice of such claim is provided by Seller, in good faith, to Buyer before the Representation Expiration Date, provided that claims with respect to Buyer’s Warranties related to the Exchange Units, TCI Stock, the Installment Notes, the Partnership Agreement, the Put Agreement, and/or the Continuing Offer shall not be subject to the limitations set forth in this clause (ii) and shall survive the Closing indefinitely, (iii) pursuant to clauses (c) and (d) above only, to the extent resulting from or relating to Seller’s or any Unit Holder’s acts or omissions after the Closing, or (iv) pursuant to clause (b) above only, relating to any condition, covenant or other obligation expressly waived by Seller in writing. Written notification of any claim made under clauses (b) through (d) above must be received in writing by Buyer before the Representation Expiration Date or such claim shall be forever barred and Buyer shall have no Liability with respect thereto. Upon delivery of any such notice(s) within the applicable time period, the indemnification obligations with respect to such underlying claims shall then continue in force and effect until the underlying claims are fully and finally adjudicated or otherwise settled by the parties. If the Closing occurs, indemnification pursuant to this Section 15.3 (subject to the conditions and limitations set forth in this Agreement) will be the Seller’s exclusive remedy for and in respect of any breach of any of Buyer’s Warranties and any Liabilities arising under, or in connection with, this Agreement or the transactions contemplated hereby, other than remedies in respect of (A) claims that cannot be waived as a matter of law, (B) claims under or related to the Installments Notes or the Buyer Letters of Credit, (C) claims (other than claims under this Agreement) related to the Exchange Units or TCI Stock, or the Seller’s or any Unit Holder’s investment therein, including any claims by Seller or any Unit Holder under the Put Agreement, Partnership Agreement, the Continuing Offer, the TCI Designation or the Tax Indemnification Agreement, and (D) claims by Seller or any Unit Holder under Section 3.2, Section 4.6, Article XI, Section 18.14 or Section 18.20.
Appears in 1 contract
Buyer’s Indemnification of Seller. Subject Except as otherwise provided herein and subject to the provisions of this Section 15.415, from and after the ClosingClosing Date, Buyer shall indemnify, defend, save and hold harmless harmless, Seller, the other members of the BP Group, and their respective directors, officers, employees, shareholders, partners, counsel, auditors, accountants, agents, advisors and other representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Seller Indemnified Parties"), from and against any and all Liabilities asserted againstLosses of any kind which are caused by, resulting arise from, are incurred in connection with or relate in any way to:
(i) the ownership of the Purchased Assets, imposed uponincluding the Refinery and all of the other Purchased Assets, and the operation of the Refinery on and after the Closing Date, including those Losses arising under, any foreign, federal, state or local laws or regulations, or incurred by Seller any contract, warranty, tort or other theory of law;
(ii) Buyer's modification of any technology, software, know-how or proprietary information transferred or licensed to Buyer pursuant to the extent resulting from Technology Agreement;
(iii) (A) Buyer's breach of or related failure to perform any covenant or agreement in this Agreement requiring performance by Buyer on or after the Closing Date (aincluding any discontinuance, suspension or modification of any compensation or employee benefit plan or program maintained by Buyer as contemplated by Section 11); or (B) misrepresentation or Buyer's breach of any of Buyer’s representation or TCI’s representations or warranties contained warranty in Article XIII of this Agreement which survives the Closing; or
(iv) the Assumed Liabilities (other than any Retained Environmental Liabilities covered by Section 15(c)(i) below); provided, however, that Buyer shall not have any liability under clause (iii) above for any breach of a representation or elsewhere warranty contained in this Agreement or the other agreements contemplated hereby if Seller had knowledge of such breach at the time of Closing and failed to notify Buyer of such breach, and no Losses caused by, arising from, incurred in connection with or related in any document or instrument delivered by Buyer or TCI to Seller or any Unit Recipient at the Closing, (b) breach by Buyer, TCI or any Permitted Title Nominee of, or a default by Buyer, TCI or any Permitted Title Nominee under, any of the provisions of this Agreement or any other document or instrument delivered by Buyer, TCI or any Permitted Title Nominee at the Closing; (c) any third-party claims or actions asserted or brought against Seller based upon any breach or alleged breach by Buyer or a Permitted Title Nominee of, or a default or alleged default by Buyer or a Permitted Title Nominee under, the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related to the Developments occurring after the Closing or any other liabilities under the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related to the Developments arising out of acts or omissions of Buyer or any Permitted Title Nominee occurring after the Closing; (d) any third-party claims or actions for property damage or personal injury, or any other third party tort claims, asserted or brought against Seller based upon Buyer’s, any Permitted Title Nominee’s or any property manager’s acts or omissions relating to the Property, which acts or omissions occurred after the Closing; or (e) any breach by Buyer of, or a default by Buyer under, any obligation of Buyer under this Agreement related to the Exchange Units or the Installment Notes. Notwithstanding the foregoing, no claim may be asserted or suit instituted seeking indemnification (i) pursuant to this Section 15.3, with respect to any indirect, consequential, exemplary, incidental punitive or special damages suffered by Seller or any Unit Holder, (ii) pursuant to clauses (a) through (d) above only, unless a written notice of such claim is provided by Seller, in good faith, to Buyer before the Representation Expiration Date, provided that claims with respect to Buyer’s Warranties related to the Exchange Units, TCI Stock, the Installment Notes, the Partnership Agreement, the Put Agreement, and/or the Continuing Offer shall not be subject to the limitations set forth in this clause (ii) and shall survive the Closing indefinitely, (iii) pursuant to clauses (c) and (d) above only, to the extent resulting from or relating to Seller’s or any Unit Holder’s acts or omissions after the Closing, or (iv) pursuant to clause (b) above only, relating to any condition, covenant or other obligation expressly waived by Seller in writing. Written notification of any claim made under clauses (b) through (d) above must be received in writing by Buyer before the Representation Expiration Date or such claim way thereto shall be forever barred and Buyer shall have no Liability with respect thereto. Upon delivery aggregated for purposes of any such notice(s) within the applicable time period, the indemnification obligations with respect to such underlying claims shall then continue in force and effect until the underlying claims are fully and finally adjudicated or otherwise settled by the parties. If the Closing occurs, indemnification pursuant to this Section 15.3 (subject to the conditions and limitations set forth in this Agreement) will be the Seller’s exclusive remedy for and in respect of any breach of any of Buyer’s Warranties and any Liabilities arising under, or in connection with, this Agreement or the transactions contemplated hereby, other than remedies in respect of (A) claims that cannot be waived as a matter of law, (B) claims under or related to the Installments Notes or the Buyer Letters of Credit, (C) claims (other than claims under this Agreement) related to the Exchange Units or TCI Stock, or the Seller’s or any Unit Holder’s investment therein, including any claims by Seller or any Unit Holder under the Put Agreement, Partnership Agreement, the Continuing Offer, the TCI Designation or the Tax Indemnification Agreement, and (D) claims by Seller or any Unit Holder under Section 3.2, Section 4.6, Article XI, Section 18.14 or Section 18.2015(j).
Appears in 1 contract
Samples: Asset Purchase Agreement (Tesoro Petroleum Corp /New/)
Buyer’s Indemnification of Seller. Subject to the provisions of this Section 15.416., from on and after the Closing, Closing Date Buyer shall indemnify, defend, defend and save and hold harmless ("Indemnify"), the BP Group, its affiliates and their respective officers, directors, shareholders, partners, employees, and agents and each of the heirs, executors, successors and assigns of any of the foregoing (collectively for the purposes of Section 8. and Section 16., "Seller Indemnified Party"), from and against any and all Liabilities asserted againstclaims, resulting todamages, imposed uponlosses, expenses, costs, deficiencies, penalties, liens, interest, fines, assessments, charges, obligations or incurred by Seller liabilities of any kind, including reasonable attorneys' fees and court costs (collectively, the "Losses" and individually "Loss") to the extent resulting arising from or related to any (a) misrepresentation or breach of any of Buyer’s or TCI’s representations or warranties contained in Article XIII of this Agreement or elsewhere in this Agreement or attributable in any document way to:
(i) the ownership or instrument delivered by Buyer or TCI to Seller or any Unit Recipient at the Closing, (b) breach by Buyer, TCI or any Permitted Title Nominee of, or a default by Buyer, TCI or any Permitted Title Nominee under, any operation of the provisions of this Agreement Refinery or any other document Purchased Assets after the Closing Date including without limitation those arising under Environmental Laws such as CERCLA or instrument delivered the release after Closing and subsequent migration of contamination by BuyerContained Hazardous Substances or by Hazardous Substances not attributable to the Waste Units (in each case except to the extent Seller has Indemnified Buyer as provided below); and any cost or expense for which Buyer has assumed responsibility pursuant to Section 8, TCI any federal or any Permitted Title Nominee at the Closing; (c) any third-party claims or actions asserted or brought against Seller based upon any breach or alleged breach by Buyer or a Permitted Title Nominee of, or a default or alleged default by Buyer or a Permitted Title Nominee under, the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents state workers compensation laws or any other agreement related to the Developments occurring after the Closing foreign, federal, state or any other liabilities under the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents local laws or any other agreement related to the Developments arising out of acts or omissions of Buyer or any Permitted Title Nominee occurring after the Closing; (d) any third-party claims or actions for property damage or personal injuryregulations, or any other third party tort claimscontract, asserted or brought against Seller based upon Buyer’swarranty, any Permitted Title Nominee’s or any property manager’s acts or omissions relating to the Property, which acts or omissions occurred after the Closing; or (e) any breach by Buyer oftort, or a default by other theory of law; provided, however, that Buyer under, any obligation of Buyer under this Agreement related shall not be obligated to Indemnify the Exchange Units or the Installment Notes. Notwithstanding the foregoing, no claim may be asserted or suit instituted seeking indemnification (i) pursuant to this Section 15.3, Seller Indemnified Party with respect to any indirect, consequential, exemplary, incidental punitive liability or special damages suffered obligation to the extent to which Buyer is entitled to be Indemnified by Seller or any Unit Holder, pursuant to Section 16.B.;
(ii) pursuant (x) any breach of or failure to clauses (a) through (d) above onlyperform any covenant, unless a written notice of such claim is provided by Seller, in good faith, to Buyer before the Representation Expiration Date, provided that claims with respect to Buyer’s Warranties related to the Exchange Units, TCI Stock, the Installment Notes, the Partnership Agreement, the Put Agreement, and/or the Continuing Offer shall not be subject to the limitations set forth or agreement in this clause (ii) and shall survive the Closing indefinitely, (iii) pursuant to clauses (c) and (d) above only, to the extent resulting from or relating to Seller’s or any Unit Holder’s acts or omissions after the ClosingAgreement by Buyer, or (ivy) pursuant to clause (b) above only, relating to any condition, covenant or other obligation expressly waived by Seller in writing. Written notification of any claim made under clauses (b) through (d) above must be received in writing by Buyer before the Representation Expiration Date or such claim shall be forever barred and Buyer shall have no Liability with respect thereto. Upon delivery of any such notice(s) within the applicable time period, the indemnification obligations with respect to such underlying claims shall then continue in force and effect until the underlying claims are fully and finally adjudicated or otherwise settled by the parties. If the Closing occurs, indemnification pursuant to this Section 15.3 (subject to the conditions and limitations set forth in this Agreement) will be the Seller’s exclusive remedy for and in respect of any breach of any of Buyer’s Warranties and any Liabilities arising under, representation or warranty in connection with, this Agreement or the transactions contemplated hereby, other than remedies in respect of (A) claims that cannot be waived as a matter of law, (B) claims under or related to the Installments Notes or the Buyer Letters of Credit, (C) claims (other than claims under this Agreement) related to the Exchange Units or TCI Stock, or the Seller’s or any Unit Holder’s investment therein, including any claims by Seller or any Unit Holder under the Put Agreement, Partnership Agreement, the Continuing Offer, the TCI Designation or the Tax Indemnification Agreement, and (D) claims by Seller or any Unit Holder under Section 3.2, Section 4.6, Article XI, Section 18.14 or Section 18.20.Buyer; or
Appears in 1 contract
Samples: Agreement for the Purchase and Sale (Clark Usa Inc /De/)
Buyer’s Indemnification of Seller. Subject Except as otherwise provided herein (including, but not limited to, the environmental indemnification provisions of Section 16(c)) and subject to the provisions of this Section 15.416, from and after the ClosingClosing Date, Buyer shall indemnify, defend, save and hold harmless harmless, Seller, the other members of the BP Amoco Group, and their respective directors, officers, employees, shareholders, partners, counsel, auditors, accountants, agents, advisors and other representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Seller Indemnified Party"), from and against any and all Liabilities asserted againstLosses of any kind which are caused by, resulting arise from, are incurred in connection with or relate in any way to:
(i) the ownership of the Purchased Assets, imposed uponincluding, without limitation, the Alliance Refinery and all of the other Purchased Assets, and the operation of the Alliance Refinery on and after the Closing Date, including, without limitation, those arising under, any foreign, federal, state or local laws or regulations, or incurred by Seller any contract, warranty, tort, or other theory of law;
(ii) Buyer's modification of any technology, software, know-how or proprietary information transferred or licensed to Buyer pursuant to the extent resulting from Technology Agreement;
(A) Buyer's breach of or related failure to perform any covenant or agreement in this Agreement requiring performance by Buyer on or after the Closing Date (aincluding, without limitation, any discontinuance, suspension or modification of any compensation or employee benefit plan or program maintained by Buyer as contemplated by Section 12 above); or (B) misrepresentation or Buyer's breach of any of Buyer’s representation or TCI’s representations or warranties contained warranty in Article XIII of this Agreement which survives the Closing; or
(iv) the Assumed Liabilities (other than any Assumed Liabilities which constitute Environmental Liabilities, which are covered in Section 16(c) below); provided, however, that Buyer shall not have any liability under clause (iii) above for any breach of a representation or elsewhere warranty contained in this Agreement or the other agreements contemplated hereby if Seller had knowledge of such breach at the time of Closing and failed to notify Buyer of such breach, and no Losses caused by, arising from, incurred in connection with or related in any document or instrument delivered by Buyer or TCI to Seller or any Unit Recipient at the Closing, (b) breach by Buyer, TCI or any Permitted Title Nominee of, or a default by Buyer, TCI or any Permitted Title Nominee under, any of the provisions of this Agreement or any other document or instrument delivered by Buyer, TCI or any Permitted Title Nominee at the Closing; (c) any third-party claims or actions asserted or brought against Seller based upon any breach or alleged breach by Buyer or a Permitted Title Nominee of, or a default or alleged default by Buyer or a Permitted Title Nominee under, the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related to the Developments occurring after the Closing or any other liabilities under the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related to the Developments arising out of acts or omissions of Buyer or any Permitted Title Nominee occurring after the Closing; (d) any third-party claims or actions for property damage or personal injury, or any other third party tort claims, asserted or brought against Seller based upon Buyer’s, any Permitted Title Nominee’s or any property manager’s acts or omissions relating to the Property, which acts or omissions occurred after the Closing; or (e) any breach by Buyer of, or a default by Buyer under, any obligation of Buyer under this Agreement related to the Exchange Units or the Installment Notes. Notwithstanding the foregoing, no claim may be asserted or suit instituted seeking indemnification (i) pursuant to this Section 15.3, with respect to any indirect, consequential, exemplary, incidental punitive or special damages suffered by Seller or any Unit Holder, (ii) pursuant to clauses (a) through (d) above only, unless a written notice of such claim is provided by Seller, in good faith, to Buyer before the Representation Expiration Date, provided that claims with respect to Buyer’s Warranties related to the Exchange Units, TCI Stock, the Installment Notes, the Partnership Agreement, the Put Agreement, and/or the Continuing Offer shall not be subject to the limitations set forth in this clause (ii) and shall survive the Closing indefinitely, (iii) pursuant to clauses (c) and (d) above only, to the extent resulting from or relating to Seller’s or any Unit Holder’s acts or omissions after the Closing, or (iv) pursuant to clause (b) above only, relating to any condition, covenant or other obligation expressly waived by Seller in writing. Written notification of any claim made under clauses (b) through (d) above must be received in writing by Buyer before the Representation Expiration Date or such claim way thereto shall be forever barred and Buyer shall have no Liability with respect thereto. Upon delivery aggregated for purposes of any such notice(s) within the applicable time period, the indemnification obligations with respect to such underlying claims shall then continue in force and effect until the underlying claims are fully and finally adjudicated or otherwise settled by the parties. If the Closing occurs, indemnification pursuant to this Section 15.3 (subject to the conditions and limitations set forth in this Agreement) will be the Seller’s exclusive remedy for and in respect of any breach of any of Buyer’s Warranties and any Liabilities arising under, or in connection with, this Agreement or the transactions contemplated hereby, other than remedies in respect of (A) claims that cannot be waived as a matter of law, (B) claims under or related to the Installments Notes or the Buyer Letters of Credit, (C) claims (other than claims under this Agreement) related to the Exchange Units or TCI Stock, or the Seller’s or any Unit Holder’s investment therein, including any claims by Seller or any Unit Holder under the Put Agreement, Partnership Agreement, the Continuing Offer, the TCI Designation or the Tax Indemnification Agreement, and (D) claims by Seller or any Unit Holder under Section 3.2, Section 4.6, Article XI, Section 18.14 or Section 18.2016(j).
Appears in 1 contract
Buyer’s Indemnification of Seller. Subject to Section 15.4, from and after the Closing, Buyer shall indemnify, defend, and hold harmless Seller from and against all Liabilities asserted against, resulting to, imposed upon, or incurred by Seller to the extent resulting from or related to any (a) misrepresentation Subject to the limitations contained in 11.3(b) below, Buyer agrees to indemnify Seller and its agents, representatives, successors and assigns and to hold them harmless against any Losses which they may suffer, sustain or become subject to, as the result of (i) a breach of any of Buyer’s representation, warranty, covenant, or TCI’s representations or warranties agreement by Buyer contained in Article XIII of this Agreement or elsewhere in this Agreement or in any document or instrument delivered by Buyer or TCI to Seller or any Unit Recipient at the ClosingAgreement, (bii) breach Buyer's actions or omissions with respect to the Acquired Business and the Assumed Liabilities subsequent to the Closing Date, (iii) any claim (whether or not successful) by Buyer, TCI or any Permitted Title Nominee of, or a default by Buyer, TCI or any Permitted Title Nominee under, any of the provisions of this Agreement or any other document or instrument delivered by Buyer, TCI or any Permitted Title Nominee at Transferred Employees that the Closing; (c) any third-party claims or actions asserted or brought against Seller based upon any breach or alleged breach by Buyer or a Permitted Title Nominee of, or a default or alleged default by Buyer or a Permitted Title Nominee under, Statutorily Required Employee Information Letters containing the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related Change to the Developments occurring after the Closing or any other liabilities under the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related to the Developments arising out of acts or omissions of Buyer or any Permitted Title Nominee occurring after the Closing; (d) any third-party claims or actions for property damage or personal injury, or any other third party tort claims, asserted or brought against Seller based upon Buyer’s, any Permitted Title Nominee’s or any property manager’s acts or omissions relating to the Property, which acts or omissions occurred after the Closing; or (e) any breach by Buyer of, or a default by Buyer under, any obligation of Buyer under this Agreement related to the Exchange Units or the Installment Notes. Notwithstanding the foregoing, no claim may be asserted or suit instituted seeking indemnification (i) pursuant to this Section 15.3Working Conditions Statement was, with respect to such Statement, either incomplete or incorrect or both incomplete and incorrect or that any indirectstatements (either oral or written) made by Buyer or at the direction of Buyer to any Transferred Employees prior to the date hereof were incorrect, consequentialincomplete or both incorrect and incomplete, exemplary, incidental punitive and (iv) in the event that Buyer restructures any work or special damages suffered by employment conditions in a jurisdiction where there exists a work council and Seller or incurs any Unit Holder, Losses due to any such restructuring.
(b) The indemnification provided for in Section 11.3(a) above is subject to the following limitations:
(i) Buyer shall be liable to Seller with respect to claims referred to in subsection (a) above only if Seller gives Buyer written notice thereof within eighteen (18) months after the Closing Date.
(ii) pursuant Buyer shall not be liable to clauses Seller for any Loss arising under subsection (a) through above unless the aggregate amount of all such Losses relating to Breaches thereunder exceeds one percent (d1%) above only, unless a written notice of such claim is provided by Sellerthe Initial Purchase Price ("BUYER THRESHOLD"), in good faithwhich case Buyer shall be liable for all such Losses in excess of one percent (1%) of the Initial Purchase Price but only up to an amount which does not exceed twenty-five percent (25%) of the Initial Purchase Price; provided, to however, that the Buyer before the Representation Expiration Date, provided that claims with respect to Buyer’s Warranties related Threshold shall not apply to the Exchange Units, TCI Stockindemnification obligations of Buyer under Section 11.2 (a) (iii) and (iv) and Section 10.1(b)(v). Notwithstanding anything to the contrary herein, the Installment Notes, parties agree that the Partnership Agreement, the Put Agreement, and/or the Continuing Offer shall not be subject to the limitations protections and remedies for Seller set forth in this clause (ii) and shall survive the Closing indefinitely, (iii) pursuant to clauses (c) and (d) above only, to the extent resulting from or relating to Seller’s or any Unit Holder’s acts or omissions after the Closing, or (iv) pursuant to clause (b) above only, relating to any condition, covenant or other obligation expressly waived by Seller in writing. Written notification of any claim made under clauses (b) through (d) above must be received in writing by Buyer before the Representation Expiration Date or such claim Section 11 shall be forever barred and Buyer shall have no Liability with respect thereto. Upon delivery of any such notice(s) within the applicable time period, the indemnification obligations with respect to such underlying claims shall then continue in force and effect until the underlying claims are fully and finally adjudicated or otherwise settled by the parties. If the Closing occurs, indemnification pursuant to this Section 15.3 (subject to the conditions and limitations set forth in this Agreement) will be the Seller’s exclusive remedy remedies for and in respect of any breach of any of Buyer’s Warranties and any Liabilities arising under, or in connection with, this Agreement or the transactions contemplated hereby, other than remedies in respect of (A) claims that cannot be waived as a matter of law, (B) claims under or related to the Installments Notes or the Buyer Letters of Credit, (C) claims (other than claims under this Agreement) related to the Exchange Units or TCI Stock, or the Seller’s or any Unit Holder’s investment therein, including any claims by Seller or any Unit Holder under the Put Agreement, Partnership Agreement, the Continuing Offer, the TCI Designation or the Tax Indemnification Agreement, and (D) claims by Seller or any Unit Holder Losses described under Section 3.2, Section 4.6, Article XI, Section 18.14 or Section 18.2011.3.
Appears in 1 contract
Buyer’s Indemnification of Seller. Subject to Section 15.4the other provisions and limitations of this Article IX, from and after following the Closing, Buyer shall indemnify, defend, defend and hold harmless the Seller Indemnified Parties from and against all Liabilities asserted against, resulting to, imposed upon, or Losses actually incurred by any Seller Indemnified Party attributable to the extent resulting from or related to any which arise from:
(a) misrepresentation or the breach of any Buyer Fundamental Representations; provided, that Buyer shall not have any liability for claims made under this clause (a) after 90 days after the expiration of Buyer’s the statute of limitations applicable to third party claims relating to the matters covered by the Buyer Fundamental Representations;
(b) the breach of any Buyer Non-Fundamental Representations, subject to the following limitations:
(i) Buyer shall not have any liability for claims made under this clause (b) after 18 months after the Closing Date;
(ii) in no event shall Buyer be required to provide indemnification to any Seller Indemnified Party for any single claim or TCI’s representations aggregated claims arising from the breach of any Buyer Non-Fundamental Representations unless the amount of such claim or warranties contained aggregated claims exceeds the De Minimis;
(iii) the provisions for indemnity under this clause (b) shall be effective only when the aggregate amount of all Losses, excluding Losses that do not exceed the De Minimis, incurred by the Seller Indemnified Parties in Article XIII respect of all claims against Buyer for indemnification under such provisions exceeds an amount equal to the Deductible, in which case the Seller Indemnified Parties shall be entitled to indemnification for only the amount of Losses in excess of the Deductible; and
(iv) in no event shall the aggregate amount of all Losses for which Buyer is obligated to indemnify the Seller Indemnified Parties pursuant to this Agreement clause (b) exceed the Cap; and
(c) the breach or elsewhere violation of any covenant or agreement made or given in this Agreement or in any document or instrument delivered by Buyer or TCI any of its Affiliates, including, following Closing, the ProjectCos; provided, that (i) with respect to Seller covenants and agreements that by their nature are to be performed by or any Unit Recipient at prior to the Closing, (b) breach by Buyer, TCI or Buyer shall not have any Permitted Title Nominee of, or a default by Buyer, TCI or any Permitted Title Nominee under, any of the provisions of liability for claims made under this Agreement or any other document or instrument delivered by Buyer, TCI or any Permitted Title Nominee at the Closing; clause (c) any thirdafter 18-party claims or actions asserted or brought against Seller based upon any breach or alleged breach by Buyer or a Permitted Title Nominee of, or a default or alleged default by Buyer or a Permitted Title Nominee under, the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related to the Developments occurring months after the Closing or Date and (ii) with respect to covenants and agreements that by their nature are to be performed following the Closing, Buyer shall not have any other liabilities liability for claims made under the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related to the Developments arising out of acts or omissions of Buyer or any Permitted Title Nominee occurring this clause (c) after the Closingexpiration of such covenants or agreements in accordance with their terms plus sixty (60) days; or
(d) any third-party claims or actions claim made by a Person (other than one of the Buyer Indemnified Parties) against any Seller Indemnified Party seeking to hold such Seller Indemnified Party liable for property damage or personal injury, or any Liability of any ProjectCo (other third party tort claims, asserted or brought against Seller based upon Buyer’s, any Permitted Title Nominee’s or any property manager’s acts or omissions relating to the Property, which acts or omissions occurred after the Closing; or (e) any breach by Buyer of, or a default by Buyer under, any obligation of Buyer under this Agreement related to the Exchange Units or the Installment Notes. Notwithstanding the foregoing, no claim may be asserted or suit instituted seeking indemnification (i) pursuant to this Section 15.3, than with respect to any indirect, consequential, exemplary, incidental punitive or special damages suffered by Seller or any Unit Holder, (iiTax matters which shall be handled as provided in Article VIII) pursuant to clauses (a) through (d) above only, unless regarding a written notice of such claim is provided by Seller, in good faith, to Buyer before the Representation Expiration Date, provided that claims with respect to Buyer’s Warranties related relates to the Exchange Units, TCI Stock, the Installment Notes, the Partnership Agreement, the Put Agreement, and/or the Continuing Offer shall not be subject to the limitations set forth in this clause (ii) and shall survive the Closing indefinitely, (iii) pursuant to clauses (c) and (d) above only, to the extent resulting from or relating to Seller’s or any Unit Holder’s acts or omissions period after the Closing, or (iv) pursuant to clause (b) above only, relating to any condition, covenant or other obligation expressly waived by Seller in writing. Written notification of any claim made under clauses (b) through (d) above must be received in writing by Buyer before the Representation Expiration Date or such claim shall be forever barred and Buyer shall have no Liability with respect thereto. Upon delivery of any such notice(s) within the applicable time period, the indemnification obligations with respect to such underlying claims shall then continue in force and effect until the underlying claims are fully and finally adjudicated or otherwise settled by the parties. If the Closing occurs, indemnification pursuant to this Section 15.3 (subject to the conditions and limitations set forth in this Agreement) will be the Seller’s exclusive remedy for and in respect of any breach of any of Buyer’s Warranties and any Liabilities arising under, or in connection with, this Agreement or the transactions contemplated hereby, other than remedies in respect of (A) claims that cannot be waived as a matter of law, (B) claims under or related to the Installments Notes or the Buyer Letters of Credit, (C) claims (other than claims under this Agreement) related to the Exchange Units or TCI Stock, or the Seller’s or any Unit Holder’s investment therein, including any claims by Seller or any Unit Holder under the Put Agreement, Partnership Agreement, the Continuing Offer, the TCI Designation or the Tax Indemnification Agreement, and (D) claims by Seller or any Unit Holder under Section 3.2, Section 4.6, Article XI, Section 18.14 or Section 18.20Effective Time.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (New Jersey Resources Corp)
Buyer’s Indemnification of Seller. Subject to Section 15.4, from and after the Closing, (a) Buyer shall indemnify, defend, ------------ --------------------------------- indemnify and hold Seller, Project Lender and Lessor and the officers, directors, employees and agents of Seller, Project Lender and Lessor (collectively, "Seller's Indemnified Parties") harmless Seller from and against all Liabilities asserted againstdamages, resulting tolosses or expenses suffered or paid as a result of any and all claims, imposed upondemands, suits, causes of action, proceedings, judgments and liabilities to third parties, including reasonable counsel fees incurred in litigation or otherwise, assessed, incurred or sustained by or against Seller's Indemnified Parties with respect to or arising out of the operation or maintenance of the Project and caused by the gross negligence or willful misconduct of Buyer or its agents or employees; provided, however, that Buyer shall not be liable, by --------- ------- reason of the foregoing indemnity, to Seller's Indemnified Parties for any loss of revenues. Notwithstanding anything to the contrary herein contained, Buyer shall not be liable, and neither Seller nor any of Seller's Indemnified Parties shall have any rights to claim or recover against Buyer's Indemnified Parties, for loss of or damage to Seller's Indemnified Parties, the Project or any other property under Seller's control from any cause to the extent resulting from insured against or related required to be insured against under the provisions of the Mortgage.
(b) Promptly after receipt by any of Seller's Indemnified Parties of any claim or notice of the commencement of any action or administrative or legal proceeding or investigation as to which the indemnity provided for in subparagraph (a) misrepresentation or breach of any of Buyer’s or TCI’s representations or warranties contained in Article XIII of this Agreement Section 7.2 may apply, Seller shall notify or elsewhere in this Agreement or cause the indemnified party to notify Buyer of such fact. Buyer shall have the right to assume the defense thereof with counsel designated by Buyer and reasonably satisfactory to the indemnified party; provided, however, that if the defendants --------- ------- in any document such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or instrument delivered by Buyer additional to those available to the indemnifying party, the indemnified party or TCI parties shall have the right to Seller select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or any Unit Recipient at the Closing, (b) breach by Buyer, TCI or any Permitted Title Nominee of, or a default by Buyer, TCI or any Permitted Title Nominee under, any of the provisions of this Agreement or any other document or instrument delivered by Buyer, TCI or any Permitted Title Nominee at the Closing; parties.
(c) Should any third-of Seller's Indemnified Parties be entitled to indemnification under this Section 7.2 as a result of a claim by a third party, and should Buyer fail to assume the defense of such claim, such indemnified party claims or actions asserted or brought against Seller based upon any breach or alleged breach by Buyer or a Permitted Title Nominee of, or a default or alleged default by Buyer or a Permitted Title Nominee under, may at the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related to the Developments occurring after the Closing or any other liabilities under the GHM Ground Lease, the Tenant Leases, the Xxxxxxx’x XXX, the Redevelopment Agreements, the Personal Property Leases, the Service Contracts, the First Mortgage Loan Documents, the Loan Assumption Documents or any other agreement related to the Developments arising out of acts or omissions expense of Buyer contest (or, with the prior consent of Buyer, settle) such claim; provided, however, that no such contest need be made, and -------- ------- settlement or full payment of any Permitted Title Nominee occurring after such claim may be made without the Closing; consent of Buyer (with Buyer remaining obligated to indemnify such indemnified party under this Section 7.2), if, in the opinion of such indemnified party's counsel, such claim is meritorious or the defendant has no valid defense to such claim.
(d) In the event that Buyer is obligated to indemnify and hold any third-party claims or actions for property damage or personal injuryof Seller's Indemnified Parties harmless under this Section 7.2, or any other third party tort claims, asserted or brought against Seller based upon Buyer’s, any Permitted Title Nominee’s or any property manager’s acts or omissions relating the amount owing to the Property, which acts or omissions occurred after indemnified party shall be the Closing; or (e) any breach by Buyer of, or a default by Buyer under, any obligation of Buyer under this Agreement related to the Exchange Units or the Installment Notes. Notwithstanding the foregoing, no claim may be asserted or suit instituted seeking indemnification (i) pursuant to this Section 15.3, with respect to any indirect, consequential, exemplary, incidental punitive or special damages suffered by Seller or any Unit Holder, (ii) pursuant to clauses (a) through (d) above only, unless a written notice amount of such claim is provided by Seller, in good faith, to Buyer before the Representation Expiration Date, provided that claims with respect to Buyer’s Warranties related to the Exchange Units, TCI Stock, the Installment Notes, the Partnership Agreement, the Put Agreement, and/or the Continuing Offer shall not be subject to the limitations set forth in this clause (ii) and shall survive the Closing indefinitely, (iii) pursuant to clauses (c) and (d) above only, to the extent resulting from or relating to Seller’s or indemnified party's actual out-of-pocket loss net of any Unit Holder’s acts or omissions after the Closing, or (iv) pursuant to clause (b) above only, relating to any condition, covenant insurance or other obligation expressly waived by Seller in writing. Written notification of any claim made under clauses (b) through (d) above must be received in writing by Buyer before the Representation Expiration Date or such claim shall be forever barred and Buyer shall have no Liability with respect thereto. Upon delivery of any such notice(s) within the applicable time period, the indemnification obligations with respect to such underlying claims shall then continue in force and effect until the underlying claims are fully and finally adjudicated or otherwise settled by the parties. If the Closing occurs, indemnification pursuant to this Section 15.3 (subject to the conditions and limitations set forth in this Agreement) will be the Seller’s exclusive remedy for and in respect of any breach of any of Buyer’s Warranties and any Liabilities arising under, or in connection with, this Agreement or the transactions contemplated hereby, other than remedies in respect of (A) claims that cannot be waived as a matter of law, (B) claims under or related to the Installments Notes or the Buyer Letters of Credit, (C) claims (other than claims under this Agreement) related to the Exchange Units or TCI Stock, or the Seller’s or any Unit Holder’s investment therein, including any claims by Seller or any Unit Holder under the Put Agreement, Partnership Agreement, the Continuing Offer, the TCI Designation or the Tax Indemnification Agreement, and (D) claims by Seller or any Unit Holder under Section 3.2, Section 4.6, Article XI, Section 18.14 or Section 18.20recovery.
Appears in 1 contract
Samples: Electric Energy Purchase Agreement (Environmental Power Corp)
