Indemnification by Seller Group. Each of Seller and Parent, ------------------------------- jointly and severally, agrees to indemnify and hold harmless Buyer from and against any and all Losses and Expenses incurred by Buyer in connection with or arising from, and shall defend each Buyer Group Member against any claims which, if true, would constitute: (a) any breach by Seller or Parent of any of its or their respective covenants in this Agreement or in any Seller Ancillary Agreement; (b) any failure of Seller or Parent to perform any of its or their respective obligations in this Agreement or in any Seller Ancillary Agreement; (c) any breach of any warranty or the inaccuracy of any representation of Seller or Parent contained in this Agreement; (d) the failure of Seller or Parent to comply with any applicable bulk sales law (except that this clause shall not affect the obligation of Buyer to pay and discharge the Assumed Liabilities); or (e) the failure of Seller or Parent to perform or discharge any Excluded Liability. provided, however, that Seller and Parent shall be required to indemnify and -------- ------- hold harmless Buyer under clauses (a), (b) and (c) of this Section 8.1 with ----------- respect to Losses and Expenses incurred by Buyer only if the aggregate amount of such Losses and Expenses on a cumulative basis exceeds $100,000 (for the sake of clarity, if the aggregate amount of Losses and Expenses exceeds $100,000, the full amount of such Losses and Expenses from the first dollar shall be recoverable). For the sake of clarification, Seller's and Parent's obligation to indemnify Buyer against all Excluded Liabilities shall in no way be limited in amount by virtue of the foregoing proviso. Seller's and Parent's maximum liability under this Section 8.1 shall at no time exceed an amount equal to 50% ----------- of the Final Purchase Price paid by Buyer to Seller under this Agreement (except with respect to breaches of Seller Group's representations in Sections 5.3 ------------ (first two paragraphs), 5.7(d) and 5.10(d) hereof as to which Seller Group's ------ ------- maximum liability with respect to such breaches together with all other liabilities under this Section 8.1 shall at no time exceed an amount equal to ----------- 100% of the Final Purchase Price paid by Buyer and Seller under this Agreement).
Appears in 1 contract
Indemnification by Seller Group. Each Seller Group hereby covenants and agrees with each BNC Party that, regardless of any investigation made at any time by or on behalf of either BNC Party or any information either BNC Party may have and regardless of the Closing hereunder, Seller and ParentGroup shall, ------------------------------- jointly and severally, agrees to indemnify each BNC Party, their respective officers, agents, representatives and Affiliates, and each of their successors and assigns (each, a "PURCHASER INDEMNIFIED PARTY") and hold them harmless Buyer from from, against and against in respect of any and all Losses costs, losses, demands, claims, liabilities, fines, penalties, fees, incidental and Expenses incurred by Buyer consequential damages, lost profits and expenses (including interest which may be imposed in connection with or arising therewith and court costs and fees and fees and costs of counsel) (collectively, the "DAMAGES") resulting from, and shall defend each Buyer Group Member against arising out of, relating to, in the nature of, or caused by any claims which, if true, would constituteof them in connection with:
(a) all claims or demands of any breach nature, whether accrued, absolute, contingent or otherwise, arising out of the business of Seller, the Purchased Assets or the Mortgage Business or any actions of Seller Group (other than claims or demands relating to the Pipeline Loans which shall be governed by and subject to the limitations of Section 9.2(h) herein) and, in any such case, attributable to any event occurring at or prior to the Closing Date or which relate or are attributable to (i) actions taken by Seller using the name America's Lender pursuant to Section 7.9 hereof or Parent (ii) Purchaser's compliance with the provisions of any of its or their respective covenants in this Agreement or in any Seller Ancillary AgreementSection 10.2 hereof;
(b) any failure of Seller breach of, with respect to or Parent to perform any inaccuracy in any of its the representations, warranties, covenants or their respective obligations agreements made by Seller Group in this Agreement, any Exhibit, Schedule or writing to this Agreement or any certificate, instrument or writing delivered in any Seller Ancillary connection therewith (other than claims or demands relating to the Pipeline Loans which shall be governed by and subject to the limitations of Section 9.2(h) herein), including but not limited to the Non- Competition Agreement;
(c) any attempt (whether or not successful) by any Person to cause or require a Purchaser Indemnified Party to pay or discharge any debt, obligation, liability or commitment of Seller not assumed by Purchaser pursuant to this Agreement (including any liability of Seller under any bulk transfer law of any jurisdiction, under common law doctrine of de facto merger or successor liability, or otherwise by operation of law) or the existence of which would constitute a breach of any warranty representation, warranty, covenant or agreement set forth herein (other than claims or demands relating to the inaccuracy Pipeline Loans which shall be governed by and subject to the limitations of any representation of Seller or Parent contained in this AgreementSection 9.2(h) herein);
(d) any Action arising out of or incidental to any of the failure matters indemnified against in this Section 9.2 (other than claims or demands relating to the Pipeline Loans which shall be governed by and subject to the limitations of Seller or Parent to comply with any applicable bulk sales law (except that this clause shall not affect the obligation of Buyer to pay and discharge the Assumed LiabilitiesSection 9.2(h) herein); or;
(e) any claims for compensation and other employee benefits (including, but not limited to, severance pay, disability benefits, health, workers' compensation, and death benefits) (A) accruing at any time with respect to persons who were employed in the failure Mortgage Business and do not become Retained Employees and (B) accruing prior to the date a person becomes a Retained Employee, and related costs and liabilities, regardless of whether such claims and related costs and liabilities are made or incurred before, on or after the Closing Date;
(f) any claims by any current or former employees of the Seller resulting from their termination as a result of Seller's sale of the Purchased Assets.
(g) any Environmental Claim or Parent any Remedial Action arising out of or occurring with respect to perform the use of the Purchased Assets prior to the Closing, or discharge the operation of the Mortgage Business prior to the Closing;
(h) subject to Purchaser's compliance with the second sentence of Section 10.4 herein, any Excluded Liability. providedAction in connection with the Pipeline Loans, including Actions arising out of the conformity of the Pipeline Loans to the requirements or guidelines of any Governmental Entity or Investor at or prior to the Closing or compliance with applicable state and federal law at or prior to the Closing;
(i) any Action arising from or related to the Limited License Agreement including the use of the name "America's Lender" (or any derivation thereof) by Seller pursuant to such Agreement; provided however, that Seller and Parent Group shall be required to indemnify and -------- ------- hold harmless Buyer under clauses (a), (b) and (c) of this Section 8.1 with ----------- respect to Losses and Expenses incurred by Buyer only if the aggregate amount of such Losses and Expenses on a cumulative basis exceeds $100,000 (have no liability or obligation for the sake of clarity, if the aggregate amount of Losses and Expenses exceeds $100,000, the full amount of such Losses and Expenses from the first dollar shall be recoverable). For the sake of clarification, Seller's and Parent's obligation to indemnify Buyer against all Excluded Liabilities shall in no way be limited in amount by virtue any Action arising out of the foregoing provisoexploitation or other use of the name "America's Lender" by the BNC Parties after the Closing; and
(j) any Action arising from or related to the fact that from November 20, 1998 through December 10, 1998, Purchaser was incorporated under the name America's Lendxx.xxx, Xxc. Seller's and Parent's maximum liability subject to compliance with that certain Limited License Agreement between the parties dated November 16, 1998. If, by reason of the claim of any third Person relating to any of the matters subject to indemnification under this Section 8.1 shall at no time exceed an amount equal to 50% ----------- 9.2, a Lien, attachment, garnishment or execution is placed upon any of the Final Purchase Price paid by Buyer assets or property of any Purchaser Indemnified Party, Seller Group shall also, promptly upon demand, furnish an indemnity bond satisfactory to Purchaser Indemnified Party to obtain the prompt release of such Lien, attachment, garnishment or execution. Notwithstanding anything set forth in the foregoing to the contrary, Purchaser shall have the right to offset any Damages from any amounts to Seller under Group pursuant to this Agreement (except with respect or any Schedule or Exhibit hereto, including but not limited to breaches of Seller Group's representations in Sections 5.3 ------------ (first two paragraphs), 5.7(d) and 5.10(d) hereof as amounts deposited pursuant to which Seller Group's ------ ------- maximum liability with respect to such breaches together with all other liabilities under this Section 8.1 shall at no time exceed an amount equal to ----------- 100% of the Final Purchase Price paid by Buyer and Seller under this Escrow Agreement).
Appears in 1 contract
Indemnification by Seller Group. Each Member of the Seller and Parent, ------------------------------- Group hereby jointly and severally, severally agrees to indemnify and defend, hold harmless Buyer and indemnify the Purchaser and its Affiliates and their respective employees, officers, directors, stockholders, partners and representatives (“Purchaser Parties”) from and against any actual damages or losses, assessments, claims, costs and all Losses expenses (including without limitation reasonable attorneys’ fees and Expenses incurred by Buyer in connection with disbursements) which arise out of or arising from, and shall defend each Buyer Group Member against any claims which, if true, would constituterelate to:
(a) A. any misrepresentation or inaccuracy in, breach by Seller of or Parent failure to comply with, any of the representations, warranties, covenants or agreements of any Member of its or their respective covenants in this Agreement or in any the Seller Ancillary Agreement;
(b) any failure of Seller or Parent to perform any of its or their respective obligations in this Agreement or in any Seller Ancillary Agreement;
(c) any breach of any warranty or the inaccuracy of any representation of Seller or Parent Group contained in this Agreement, including without limitation in the Disclosure Schedule, or in any other Closing Document or in any certificate or other instrument or document furnished or to be furnished by any Member of the Seller Group pursuant to this Agreement or any of the Closing Documents or in connection with the transactions contemplated hereby or thereby;
(d) B. any Excluded Liabilities and any other Liabilities of any Member of the failure of Seller Group or Parent to comply with any applicable bulk sales law (except that this clause shall not affect the obligation of Buyer to pay and discharge Business, other than the Assumed Liabilities);
C. any recalls or replacements requested or required by any competent Governmental Entity or otherwise deemed appropriate by mutual agreement of the Parent and the Purchaser related to any Product manufactured, sold or distributed prior to the Closing;
D. any claim, demand, action or proceeding initiated by any third party based upon infringement of a patent, trademark, copyright or trade secret, or similar intellectual property rights as a result of the use of the Intellectual Property or conduct of the Business;
E. any negligent or fraudulent act or omission or willful misconduct of any Member of the Seller Group or any of their respective employees, agents or representatives in the performance of this Agreement;
F. any claim, demand, action or proceeding initiated by any shareholder of any Member of the Seller Group based on the Member(s) of the Seller Group entering into this Agreement or consummating the transactions set forth herein;
G. any claim, demand, action or proceeding initiated by any third party alleging that any Product manufactured, distributed or sold prior to the Closing resulted in death, harm or injury to a person; or
(e) H. without limiting the failure generality of the preceding clauses, any Taxes attributable to the Business for all periods prior to Closing, and all other Taxes of the Seller Group, in each case regardless of whether such losses, assessments, Liabilities, claims, damages, costs and expenses, or Parent the facts or circumstances relating thereto, were disclosed hereunder or in the Disclosure Schedule or otherwise. All such losses, assessments, liabilities, claims, damages, costs and expenses so arising out of or relating to perform or discharge any Excluded Liability. provided, however, that Seller and Parent shall be required to indemnify and -------- ------- hold harmless Buyer under of the foregoing clauses (aA) through (H), (b) and (c) inclusive, of this Section 8.1 with ----------- respect 6.1, or the matters described therein, are referred to Losses and Expenses incurred by Buyer only if hereinafter as the aggregate amount of such Losses and Expenses on a cumulative basis exceeds $100,000 (for the sake of clarity, if the aggregate amount of Losses and Expenses exceeds $100,000, the full amount of such Losses and Expenses from the first dollar shall be recoverable). For the sake of clarification, Seller's and Parent's obligation to indemnify Buyer against all Excluded Liabilities shall in no way be limited in amount by virtue of the foregoing proviso. Seller's and Parent's maximum liability under this Section 8.1 shall at no time exceed an amount equal to 50% ----------- of the Final Purchase Price paid by Buyer to Seller under this Agreement (except with respect to breaches of Seller Group's representations in Sections 5.3 ------------ (first two paragraphs), 5.7(d) and 5.10(d) hereof as to which Seller Group's ------ ------- maximum liability with respect to such breaches together with all other liabilities under this Section 8.1 shall at no time exceed an amount equal to ----------- 100% of the Final Purchase Price paid by Buyer and Seller under this Agreement)“Purchaser’s Losses.”
Appears in 1 contract
Indemnification by Seller Group. Each of Seller and Parent, ------------------------------- jointly and severally, agrees to indemnify and hold harmless Buyer from and against any and all Losses and Expenses incurred by Buyer in connection with or arising from, and shall defend each Buyer Group Member against any claims which, if true, would constitute:
(a) Seller Group hereby indemnifies Buyer and its Affiliates (including the Alias Companies and their Subsidiaries following the Closing) and each of its and their respective Affiliates and its and their respective directors, officers, stockholders, employees, agents, representatives and successors and assigns ("Buyer Tax Group") against and agrees to hold them harmless from any (i) Tax of any of the Alias Companies or any Subsidiary relating to a Pre-Closing Tax Period, including, for greater certainty, any Tax in relation to any transaction contemplated under Section 7.04, (ii) Combined Tax of any member of an affiliated, consolidated, combined or unitary group of which any Alias Company or Subsidiary is or was a member on or prior to the Closing Date, (iii) any Tax incurred or suffered by Buyer, the Alias Companies and their Subsidiaries, and their respective Affiliates arising out of a breach by Seller Group of any representation, warranty, covenant or Parent agreement contained in this Article 8, and (iv) Liabilities (including, without limitation, reasonable expenses of investigation and attorneys' fees and expenses), arising out of or incident to the imposition, assessment or assertion of any such Tax, including those incurred in the contest in good faith in appropriate proceedings relating to the imposition, assessment or assertion of any such Tax, in each case incurred or suffered by Buyer, any of its or their respective covenants in this Agreement or in any Seller Ancillary Agreement;
(b) any failure of Seller or Parent to perform Affiliates or, effective upon the Closing, any of its the Alias Companies, or their respective obligations in this Agreement or in any Seller Ancillary Agreement;
Subsidiary (cthe sum of (i), (ii), (iii) any breach of any warranty or the inaccuracy of any representation of Seller or Parent contained in this Agreement;
and (div) the failure of Seller or Parent being referred to comply with any applicable bulk sales law (except that this clause shall not affect the obligation of Buyer to pay and discharge the Assumed Liabilitiesas a "Loss"); or
(e) the failure of Seller or Parent to perform or discharge any Excluded Liability. provided, however, that Seller Group shall have no Liability for the payment of any loss attributable to or resulting from any action described in Section 8.03(a) hereof and Parent shall be obligated to make payments to Buyer pursuant to this Section 8.06 only to the extent that the cumulative amount that would otherwise be payable by any member of Seller Group pursuant to this Section 8.06 (notwithstanding this proviso) exceeds the aggregate amount of the provisions for Tax Liabilities of the Alias Companies and the Subsidiaries reflected on the Closing Balance Sheet and included in Final Working Capital. For the avoidance of doubt, Seller Group shall not be required to indemnify Buyer, the Alias Companies and -------- ------- hold harmless their Subsidiaries, or their respective Affiliates (i) if and only to the extent that any Tax for which an amount would otherwise be payable under this Section 8.06(a) results in no out-of-pocket costs to Buyer under clauses Tax Group because such Tax was actually offset by a Tax Asset from a Pre-Closing Tax Period or (a), ii) if and only to the extent that the Loss is a reduction in Tax Assets from a Pre-Closing Tax Period.
(b) and (c) of this Section 8.1 with ----------- respect to Losses and Expenses incurred by Buyer only if the aggregate The amount of such Losses and Expenses on a cumulative basis exceeds $100,000 (for the sake of clarity, if the aggregate amount of Losses and Expenses exceeds $100,000, the full amount of such Losses and Expenses from the first dollar shall be recoverable). For the sake of clarification, Seller's and Parent's obligation to indemnify Buyer against all Excluded Liabilities shall in no way be limited in amount by virtue of the foregoing proviso. Seller's and Parent's maximum liability under this Section 8.1 shall at no time exceed an amount equal to 50% ----------- of the Final Purchase Price paid by Buyer to Seller under this Agreement (except with respect to breaches of Seller Group's representations in Sections 5.3 ------------ (first two paragraphs)indemnification obligation under this Section 8.06 shall initially be determined without regard to any Tax Benefit. However, 5.7(d) and 5.10(d) hereof as to which the extent that Seller Group's ------ ------- maximum liability indemnification obligation under this Section 8.06 arises in respect of an adjustment which makes allowable to Buyer Tax Group any deduction, amortization, exclusion from income or other allowance (a "Tax Benefit") which would not, but for such adjustment, be allowable, then Seller Group shall be entitled to such Tax Benefit and Buyer shall promptly pay to Seller Group the amount of such Tax Benefit that is actually realized by Buyer Tax Group during any Tax Period. The amount of the reduction in Tax Benefit actually realized during any Tax period shall be the excess of (i) the amount of Taxes that would have been payable to a Taxing Authority by the Buyer Tax Group in the absence of such Tax Benefit over (ii) the actual amount of Taxes payable to a Taxing Authority with respect to such breaches together Tax period.
(c) Any payment by any member of Seller Group pursuant to this Section 8.06 shall be made not later than 15 days after receipt by Seller Group of written notice from Buyer stating that any Loss has been paid by Buyer, any of its Affiliates or, effective upon the Closing, the Alias Companies or any Subsidiary and the amount thereof and of the indemnity payment requested.
(d) If any claim or demand for Taxes in respect of which indemnity may be sought pursuant to this Section 8.06 is asserted in writing against Buyer, any of its Affiliates or, effective upon the Closing, any of the Alias Companies or any Subsidiary, Buyer shall notify Seller Group of such claim or demand within 10 Business Days of receipt thereof, or such earlier time that would allow Seller Group to timely respond to such claim or demand, and shall give Seller Group such information with all other liabilities respect thereto as Seller Group may reasonably request. Any member of Seller Group may discharge, at any time, its indemnification obligation with respect to an asserted Tax under this Section 8.1 shall at no time exceed an 8.06 by paying to Buyer the maximum amount equal to ----------- 100% of the Final Purchase Price paid Taxes asserted by the Taxing Authority that, if payable, would be allocable to Seller pursuant to this Section 8.06, calculated on the date of such payment. Buyer shall not pay any claim or demand for Taxes in respect of which indemnity may be sought pursuant to Section 8.06(a) or settle any claim, suit, action, litigation or proceeding (including any Tax audit) with respect to such Taxes without the prior consent of Seller, which shall not be unreasonably withheld. Seller Group may, at its own expense, participate in and, upon notice to Buyer, assume the defense of any such claim, suit, action, litigation or proceeding (including any Tax audit); provided that, if a Taxing Authority asserts an adjustment to Taxes that would, if the Taxing Authority's position were sustained, result in an indemnification obligation under Section 8.06(a) of greater than $275,000, then Seller Group shall have the right to assume or continue such defense only so long as Seller Group complies with the provisions of Section 11.03(c) (as if Seller Group is the "Indemnifying Party" and Buyer is the "Indemnified Party," in each case as set forth in Section 11.03(c). If Seller Group assumes such defense, Seller Group shall have the sole discretion as to the conduct of such defense and Buyer shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Seller Group; provided that Seller Group shall not settle any such claim without the prior consent of Buyer, which shall not be unreasonably withheld. Whether or not Seller Group chooses to defend or prosecute any claim, all of the parties hereto shall cooperate in the defense or prosecution thereof. If Seller Group does not assume the defense of an audit or proceeding, Buyer Tax Group shall use reasonable efforts to conduct such defense actively and diligently. The reasonable out-of-pocket costs of Buyer Tax Group of addressing any audit or other proceeding with respect to a Pre-Closing Tax Period shall be borne by Seller Group, provided that (A) if Seller Group assumes the defense of any audit or proceeding under Section 8.06(d) and Buyer elects to participate in the defense thereof, Buyer shall be responsible for its own costs in connection with such participation and (B) Seller Group shall not be liable for any out-of-pocket costs incurred by Buyer and Tax Group resulting from any audit or other proceeding with respect to which Seller Group was not notified pursuant to Section 8.06(d) to the extent Seller Group's Liability for such costs is adversely affected as a result thereof.
(e) Seller Group shall not be liable under this AgreementSection 8.06 for (i) any Tax the payment of which was made without Seller Group's prior consent if such consent is required hereunder or (ii) any settlements effected without the consent of Seller Group if such consent is required hereunder, or resulting from any claim, suit, action, litigation or proceeding with respect to which Seller Group was not notified pursuant to Section 8.06(d), in each case, if and only to the extent Seller Group's Liability under this Section is adversely affected as a result thereof.
Appears in 1 contract
Indemnification by Seller Group. Each Subject to the limitations and procedures contained in Section 7.3 and in Section 7.2(b), from and after the Closing, each member of Seller and Parent, ------------------------------- Group shall jointly and severally, agrees to severally indemnify and hold harmless Buyer and its officers, directors, employees, agents and Affiliates from and against any and all Losses losses, Liabilities, claims, damages, penalties, fines, judgments, awards, settlements, Taxes, costs, fees, expenses (including reasonable attorneys’ fees) and Expenses disbursements (collectively “Losses”) suffered, incurred or sustained by Buyer any of such parties based upon, arising out of or otherwise in connection with or arising from, and shall defend each Buyer Group Member against any claims which, if true, would constitute:
respect of (ai) any breach by Seller misrepresentation of or Parent inaccuracy in any representation or warranty of any member of its or their respective covenants Seller Group contained in this Agreement (including any schedule hereto) or in any Seller Ancillary Agreement;
(b) any failure of Seller or Parent to perform any of its or their respective obligations in this Agreement or in any Seller Ancillary Agreement;
the Transaction Agreements, (cii) any breach of any warranty covenant or the inaccuracy agreement of any representation member of Seller or Parent Group contained in this Agreement;
Agreement (dincluding any schedule hereto) or any of the Transaction Agreements, (iii) any violation of or Liability arising under any bulk sales Law in connection with the transfer of the Acquired Assets hereunder, (iv) the failure of Seller or Parent to comply with any applicable bulk sales law (except that this clause shall not affect the obligation of Buyer to pay assume, pay, perform and discharge the Assumed Excluded Liabilities); or
, (ev) the failure of the landlord under the Facility Lease Agreement to complete construction and deliver possession of the leased premises to Buyer on the terms and in the condition provided in the Facility Lease Agreement, (vi) any non-compliance or alleged or possible non-compliance with U.S. Export Control Laws by any member of Seller Group or Parent any of its employees with respect to perform the Business prior to the Closing, or discharge (vii) to the extent interest or other income earned on the Escrow Amount is disbursed to Seller under the Escrow Agreement, any Excluded Liability. Taxes paid by Buyer in respect of interest or other income earned on the Escrow Amount; provided, however, that Seller and Parent shall be required to indemnify and -------- ------- hold harmless Buyer under clauses (a), (b) and (c) of this Section 8.1 with ----------- respect to Losses and Expenses incurred by Buyer only if the aggregate amount of such Losses and Expenses on a cumulative basis exceeds $100,000 (for the sake of clarity, if the aggregate amount of Losses and Expenses exceeds $100,000, the full amount of such Losses and Expenses from the first dollar shall be recoverable). For the sake of clarification, Seller's and Parent's obligation to not indemnify Buyer against all Excluded Liabilities shall in no way be limited in amount by virtue of the foregoing proviso. Seller's and Parent's maximum liability under this Section 8.1 shall at no time exceed an amount equal to 50% ----------- of for any accrued items set forth on the Final Purchase Price paid by Buyer to Seller under this Agreement (except with respect to breaches of Seller Group's representations in Sections 5.3 ------------ (first two paragraphs), 5.7(d) and 5.10(d) hereof as to which Seller Group's ------ ------- maximum liability with respect to such breaches together with all other liabilities under this Section 8.1 shall at no time exceed an amount equal to ----------- 100% of the Final Purchase Price paid by Buyer and Seller under this Agreement)Working Capital Statement.
Appears in 1 contract
