Indemnification by Seller Parties. Seller Parties, jointly and severally, agree to indemnify, defend, save and hold Buyer, and each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) harmless from and against any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered or sustained by any Buyer Indemnitee which is caused by, resulting from or arising out of: (i) any breach of any representation or warranty of any of Seller Parties contained in Section 5 of this Agreement or in any certificate delivered by any Seller Parties hereunder; (ii) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Parties.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (RiceBran Technologies)
Indemnification by Seller Parties. Seller PartiesXxxxxx and Seller, jointly and severally, agree to indemnifyshall save, defend, save indemnify and hold harmless Buyer, the Company and each of Buyer’s agentsall shareholders, employeesdirectors, officers, Affiliates, officersrepresentatives, agents, successors and directors permitted assigns of Buyer (each individually, a “Buyer IndemniteeIndemnified Party” and, collectively, the “Buyer Indemnified Parties”) harmless from and against any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses Loss that is sustained or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered or sustained incurred by any of the Buyer Indemnitee which is caused by, resulting from Indemnified Parties as a result of or arising out of: relating to:
(i) any breach of any representation Any breach, inaccuracy or warranty nonperformance by a Seller Party of any of Seller Parties contained in Section 5 of this Agreement its or in any certificate delivered by any Seller Parties hereunder; (ii) any breach of any covenant their representations, warranties, covenants or agreement agreements set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under in this Agreement or any exhibit, Ancillary Agreement or any schedule, certificate or any other document furnished delivered pursuant hereto or thereto or in connection herewithwith the Transactions (any such breach or inaccuracy to be determined without regard to any qualification for “materiality,” “in all material respects” or similar qualification; provided, however, that for purposes of the first sentence of Section 6(w) (only), for purposes of determining whether a breach or inaccuracy exists (but without affecting or limiting the calculation of or the Seller Parties’ indemnification liability for Losses in any manner) Material Adverse Effect shall be afforded its defined meaning and materiality shall not be disregarded with respect thereto; and provided further, that for purposes of Section 6(bb) (only), for purposes of determining whether a breach or inaccuracy exists (but without affecting or limiting the calculation of or the Seller Parties’ indemnification liability for Losses in any manner), references to “material” shall not be disregarded.)
(ii) Any Litigation or Loss of any kind or nature relating directly or indirectly to the matters described in Schedule 6(o); and
(iii) any Excluded Liabilities Any Litigation or any Taxes Loss of any of Seller Parties with respect kind or nature relating directly or indirectly to periods ending on any current or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Parties.future Member Claim; and
Appears in 2 contracts
Samples: Unit Purchase Agreement, Unit Purchase Agreement (Lionbridge Technologies Inc /De/)
Indemnification by Seller Parties. (a) Effective upon the Closing and subject to the other provisions of this Article IX, Seller Parties, jointly and severally, agree to indemnify, shall defend, save indemnify and hold harmless the Partnership, the General Partner and Buyer, their respective Affiliates and each all of Buyer’s agentstheir respective managers, employeespartners, Affiliatesdirectors, officers, and directors owners (each individuallycollectively, the “Buyer IndemniteeIndemnitees”) harmless from and against any and all damagesLosses asserted against, indebtednessresulting from, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses imposed upon or deficiencies incurred by any of the Buyer Indemnitees as a result of or arising out of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered or sustained breach by any Seller Party of (i) any Seller Title Representation or (ii) any of the other representations and warranties of any Seller Party set forth in Section 3.1 (Organization, Good Standing and Authority of Seller Parties), Section 3.3 (Organization, Good Standing, Authority, Capitalization of Acquired Companies), Section 3.14 (Broker’s or Finder’s Fees), Section 3.25 (Investor Status) and Section 3.26 (Status of Securities; Disposition).
(b) Effective upon the Closing and subject to the other provisions of this Article IX, Seller shall defend, indemnify and hold harmless the Buyer Indemnitee which is caused byIndemnitees from and against any and all Losses asserted against, resulting from from, imposed upon or incurred by any of the Buyer Indemnitees as a result of or arising out of: :
(i) any breach by any Seller Party of any representation its representations or warranty of any of Seller Parties warranties contained in Section 5 of this Agreement or in any certificate document or instrument delivered by any Seller Party at the Closing, other than the Seller Title Representations and the representations and warranties of the Seller Parties hereunderspecified in Section 9.3(a)(ii) (for which indemnity is provided pursuant to Section 9.3(a));
(ii) any failure by any Seller Party to comply with any covenant of such Seller Party contained in this Agreement, whether or not any such failure was discovered or known before or after Closing; and
(iii) any Buyer Indemnified Taxes.
(c) Effective upon the Closing and subject to the other provisions of this Article IX, Parent shall defend, indemnify and hold harmless the Buyer Indemnitees from and against any and all Losses asserted against, resulting from, imposed upon or incurred by any of the Buyer Indemnitees as a result of or arising out of:
(i) any breach by Parent of its representations or warranties set forth in Section 3.1;
(ii) any breach by Parent of any covenant its representations or agreement warranties set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under in this Agreement or any exhibitAgreement, schedule, certificate or any other document furnished than the representations and warranties specified in connection herewithSection 9.3(c)(i) (for which indemnity is provided pursuant to Section 9.3(c)(i)); and and
(iii) any Excluded Liabilities failure by Parent to comply with any covenant of Parent contained in this Agreement, whether or not any Taxes of such failure was discovered or known before or after Closing; provided, however, that Parent shall have no obligation to any of Seller Parties Buyer Indemnitee pursuant to this Section 9.3(c) from and after the Parent Release Date (other than with respect to periods ending on any Claim asserted or Loss sought by any Buyer Indemnitee against Parent in accordance with this Article IX prior to the Closing Parent Release Date. In ) provided that Parent has executed and delivered the event that a Buyer Indemnitee has a claim for indemnification against Parent Release to the Seller Parties hereunderPartnership, the General Partner and Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Partiesaccordance with Section 10.17.
Appears in 2 contracts
Samples: Second Contribution Agreement (Natural Resource Partners Lp), Contribution Agreement (Natural Resource Partners Lp)
Indemnification by Seller Parties. Subject to the limitations set forth in this Article VII, if the Asset Purchase is consummated, the Seller Parties, Parties (the “Seller Indemnitors”) shall jointly and severally, agree to indemnify, defend, save severally indemnify and hold Buyerharmless Buyer and its officers, directors, stockholders, Affiliates, agents and employees, and each person, if any, who controls or may control Buyer within the meaning of Buyer’s agents, employees, Affiliates, officers, and directors the Securities Act (each individually, of the foregoing being referred to individually as a “Buyer Indemnitee” and collectively as “Buyer Indemnitees”) harmless from and against any and all damagesAdverse Consequences actually suffered (“Buyer Damages”), indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered or sustained by any Buyer Indemnitee which is caused byout of, resulting from or arising out of: in connection with the following:
(ia) any breach untruth, inaccuracy or incompleteness of any representation or warranty of made by any of Seller Parties contained Party in Section 5 of this Agreement or in any certificate Ancillary Agreement or the certificates delivered by any Seller Parties hereunder; at the Closing pursuant to Sections 5.2(f) and 5.2(h) as of the date hereof or on the Closing Date as though such representation or warranty were made as of such date (iiexcept in the case of representations and warranties which by their terms speak only as of a specific date or dates, which representations and warranties shall be true and correct as of such date);
(b) any breach of any covenant or agreement set forth herein default in connection with, or failure to perform by any Seller Parties or any non-fulfillment of any obligation of Party of, any of the covenants or agreements made by such Seller Parties under Party in this Agreement or any exhibitAncillary Agreement;
(c) any brokers’ commissions, schedule, certificate finders’ fees or other like payment incurred or alleged to have been incurred by any other document furnished Seller Party in connection herewith; and with the sale of the Purchased Assets or the consummation of the transactions contemplated by this Agreement;
(iiid) any and all Excluded Liabilities Liabilities; and
(e) the failure to comply with any bulk sales or any Taxes of any of Seller Parties similar Legal Requirements in connection with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Partiestransactions contemplated hereby.
Appears in 1 contract
Indemnification by Seller Parties. Subject to the other terms and conditions of this ARTICLE VIII, from and after Closing, Seller Parties, Parties shall jointly and severallyseverally indemnify and defend each of Buyer and its Affiliates (including the Company) and their respective Representatives (collectively, agree to indemnify, defend, save and hold Buyerthe “Buyer Indemnitees”) against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damagesLosses incurred or sustained by, indebtednessor imposed upon, obligationsthe Buyer Indemnitees based upon, arising out of, with respect to or by reason of:
(a) any inaccuracy in or breach of any of the representations or warranties of Seller Parties contained in this Agreement or in any certificate or instrument delivered by or on behalf of Seller Parties pursuant to this Agreement (other than in respect of Section 3.18, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to ARTICLE VI), as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller Parties pursuant to this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in ARTICLE VI, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to ARTICLE VI);
(c) any Transaction Expenses outstanding as of the Closing;
(d) Pre-Closing Taxes;
(e) the EE Asset Reorganization;
(f) the Facial Indication Approval;
(g) any liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses obligations or deficiencies commitments of any nature whatsoever and whether accrued whatsoever, asserted or fixedunasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or un-maturedunmatured or otherwise, liquidated or unliquidatedrelating to any Benefit Plan;
(h) any liabilities, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future obligations (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation rent or similar proceedingfees or penalties) (collectively, “Losses”) incurred, suffered or sustained by any Buyer Indemnitee which is caused by, resulting from or arising out of: (i) any breach commitments of any representation nature whatsoever, asserted or warranty of any of Seller Parties contained in Section 5 of this Agreement unasserted, known or in any certificate delivered by any Seller Parties hereunder; (ii) any breach of any covenant unknown, absolute or agreement set forth herein by any Seller Parties contingent, accrued or any non-fulfillment of any obligation of any of Seller Parties under this Agreement unaccrued, matured or any exhibitunmatured or otherwise, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending on or prior relating to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller PartiesReal Property.
Appears in 1 contract
Indemnification by Seller Parties. Subject to the other terms and conditions of this Article VIII, each Seller Parties, Party shall jointly and severallyseverally indemnify and defend each of Buyer and its Affiliates and their respective Representatives (collectively, agree to indemnify, defend, save and hold Buyerthe “Buyer Indemnitees”) against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damagesLosses incurred or sustained by, indebtednessor imposed upon, obligationsthe Buyer Indemnitees based upon, liabilitiesarising out of, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses with respect to or deficiencies by reason of:
(a) any inaccuracy in or breach of any nature whatsoever of the representations or warranties of any Seller Party contained in this Agreement (as qualified by the corresponding section of the Disclosure Schedule), as of the date such representation or warranty was made or as if such representation or warranty was made on and whether accrued as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or fixedbreach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, known agreement or unknownobligation to be performed by any Seller Party pursuant to this Agreement;
(c) any Excluded Liability, absolute or contingentincluding any Liability of any nature, matured or un-maturedother than any Assumed Liability, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident relating to any claimPurchased Asset to the extent existing as of the Closing Date or to the extent relating to any fact or circumstance in existence as of the Closing Date;
(d) any Liability relating to the removal of any Encumbrance (other than Permitted Encumbrances) existing on any Purchased Asset, demand, action, suit, arbitration, investigation or similar proceedingto the extent not terminated as of the Closing Date pursuant to Section 2.04; or
(e) (collectively, “Losses”) incurred, suffered or sustained by any Buyer Indemnitee which is caused byThird Party Claim based upon, resulting from or arising out of: (i) any breach of the business, operations, properties, assets or obligations of any representation Seller Party or warranty of any of Seller Parties contained in Section 5 of this Agreement its respective Affiliates (other than the Purchased Assets or in any certificate delivered by any Seller Parties hereunder; (iiAssumed Liabilities) any breach of any covenant to the extent conducted, existing or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending arising on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Parties.
Appears in 1 contract
Indemnification by Seller Parties. Subject to the other terms and conditions of this Article VIII, each Seller Parties, Party shall jointly and severallyseverally indemnify and defend each of Buyer and its Affiliates and their respective Representatives (collectively, agree to indemnify, defend, save and hold Buyerthe “Buyer Indemnitees”) against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damagesLosses incurred or sustained by, indebtednessor imposed upon, obligationsthe Buyer Indemnitees based upon, liabilitiesarising out of, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses with respect to or deficiencies by reason of:
(a) any inaccuracy in or breach of any nature whatsoever of the representations or warranties of any Seller Party contained in this Agreement (subject to clause (e) below, as qualified by the corresponding section of the Disclosure Schedules), as of the date such representation or warranty was made or as if such representation or warranty was made on and whether accrued as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or fixedbreach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, known agreement or unknownobligation to be performed by any Seller Party pursuant to this Agreement;
(c) any Excluded Liability, absolute or contingentincluding any Liability of any nature, matured or un-maturedother than any Assumed Liability, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident relating to any claimPurchased Asset to the extent existing as of the Closing Date or to the extent relating to any fact or circumstance in existence as of the Closing Date;
(d) any Liability relating to the removal of any Encumbrance (other than Permitted Encumbrances) existing on any Purchased Asset, demandto the extent not terminated as of the Closing Date pursuant to Section 2.04;
(e) any inaccuracy in or breach of any of the representations or warranties of any Seller Party contained in this Agreement relating in any way to operations [****];
(f) the [****] Remediation Amount, action, suit, arbitration, investigation or similar proceedingto the extent that the actual such amount exceeds the amount of the estimate thereof used for the purposes of determining Closing Working Capital; or
(g) (collectively, “Losses”) incurred, suffered or sustained by any Buyer Indemnitee which is caused byThird Party Claim based upon, resulting from or arising out of: (i) any breach of the business, operations, properties, assets or obligations of any representation Seller Party or warranty of any of Seller Parties contained in Section 5 of this Agreement their respective Affiliates (other than the Purchased Assets or in any certificate delivered by any Seller Parties hereunder; (iiAssumed Liabilities) any breach of any covenant to the extent conducted, existing or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending arising on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Parties.
Appears in 1 contract
Indemnification by Seller Parties. Subject to the other terms and conditions of this Article VII, the Seller Parties, jointly and severally, Parties agree to indemnify, defend, save indemnify and hold Buyer, defend Buyer and each of Buyer’s agentsits Affiliates and their respective Representatives (collectively, employees, Affiliates, officersthe “Buyer Indemnitees”) against, and directors (shall hold each individually, “Buyer Indemnitee”) of them harmless from and against against, and shall pay and reimburse each of them for, any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered Losses incurred or sustained by any Buyer Indemnitee which is caused by, resulting from or imposed upon, the Buyer Indemnitees based upon, arising out of: , with respect to or by reason of a claim by a Buyer Indemnitee directly or by a third party:
(ia) any inaccuracy in or breach of any representation of the representations or warranty warranties of any of Seller Parties Party contained in Section 5 of this Agreement or in any certificate or instrument delivered by or on behalf of any Seller Party pursuant to this Agreement;
(b) any breach or failure to perform, comply with or observe any covenant, agreement or obligation to be performed by any Seller Parties hereunder; (ii) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under Party pursuant to this Agreement or any exhibit, schedule, certificate or instrument delivered by or on behalf of any Seller Party pursuant to this Agreement (other document furnished than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Section 6.08, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to Section 6.08);
(c) following payments made by the Buyer pursuant to Section 2.03(a)(ii), any Indebtedness as of the Effective Time which remains outstanding following the Closing, and any Seller Parties’ Transaction Expenses which remain outstanding following the Closing; or
(d) in connection herewithwith that certain Employment Agreement, dated effective as of January 12, 2016, by and between Mxxxxx Xxxxx and THP and that certain Termination Agreement of Employment Agreement, dated as of June 5, 2019, by and among THP, Seller and Mxxxxx Xxxxx; provided, however, solely for the sake of clarity, not in connection any employment agreement entered into by Mxxxxx Xxxxx and (iii) any Excluded Liabilities or any Taxes of any of Seller Parties THP in connection with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller PartiesClosing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Health Insurance Innovations, Inc.)
Indemnification by Seller Parties. Subject to the limitations set forth in this Article 6, each of the Seller PartiesParties shall, jointly and severally, agree to indemnifyindemnify and defend Buyer and its Affiliates and their respective Representatives (collectively, defend, save and hold Buyerthe “Buyer Indemnified Parties”) against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damages, indebtedness, obligations, liabilities, losses, damages, claims, actions, suits, demands, causes of action, costs, expenses, assessments, penalties, fines, judgmentsinterest, awards, settlements, costs, fees, expenses or deficiencies judgments and penalties of any nature whatsoever and whether accrued or fixed(including, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other reasonable legal costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceedingexpenses) (collectively, “Losses”), arising or resulting from:
(a) incurredAny inaccuracy in or breach of any of the representations or warranties of Seller Parties contained in this Agreement, suffered or sustained any other Transaction Document, as of the Effective Date and as of the Closing Date;
(b) Any breach or non-fulfillment of any covenant, agreement or obligation to be performed by any Seller Party pursuant to this Agreement or any other Transaction Document prior to Closing;
(c) Any Excluded Asset, any Retained Liability, or any Loss incurred by Buyer Indemnitee which is caused byas a result of Seller Parties performance, or any employees or agents thereof, under the Transition Services Agreement;
(d) Any Third Party Claim (as defined in Section 6.8(b)) based upon, resulting from or arising out of: from operation of the Business, properties, assets or Liabilities (iexcept as expressly assumed herein) any breach of any representation Seller Party or warranty of any of Seller Parties contained in Section 5 of this Agreement their Affiliates conducted, existing or in any certificate delivered by any Seller Parties hereunder; (ii) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending arising on or prior to the Closing Date;
(e) Buyer’s inability to enter into contracts either directly under Buyer’s tax identification number or indirectly through Buyer’s employed physicians with governmental and commercial payors (collectively, “Payors”) within 120 days after the Closing Date that (i) collectively comprise at least 90% of Sellers' Collections (as defined below) in the 12-month period ending on the Effective Date, and (ii) provide for financial reimbursement at payment rates comparable to or more favorable than those the applicable Seller Party or their respective employed physician has been during such period entitled to receive under its contract with such Payor. In the event that a Buyer Indemnitee has a claim for indemnification against the The term “Sellers' Collections” shall mean all cash collections of Seller Parties hereunder, the Buyer Indemnitee shall first proceed against (including those assigned to Seller Parties from any amount Clinical Provider) attributable to professional medical and other healthcare services rendered in the Escrow Account. If there is operation of the Business, but excluding all amounts received (i) directly from a patient, (ii) on account of goods sold (including Pharmaceutical Inventory) to a patient, and (iii) from an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Parties.employer for services rendered to its employee; or
Appears in 1 contract
Samples: Asset Purchase Agreement (American CareSource Holdings, Inc.)
Indemnification by Seller Parties. Subject to the other terms and conditions of this ARTICLE VIII, from and after Closing, Seller Partiesand Shareholder, jointly and severally, agree to indemnifyshall indemnify and defend each of Buyer and its Affiliates and their respective Representatives (collectively, defend, save and hold Buyerthe “Buyer Indemnitees”) against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered Losses incurred or sustained by any Buyer Indemnitee which is caused by, resulting from or imposed upon, the Buyer Indemnitees based upon, arising out of: , with respect to or by reason of:
(ia) any inaccuracy in or breach of any representation of the representations or warranty of any warranties of Seller Parties contained in Section 5 of this Agreement Agreement, the Ancillary Documents or in any certificate or instrument delivered by any or on behalf of Seller Parties hereunder; pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (iiexcept for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any covenant, agreement or obligation of to be performed by Seller Parties pursuant to this Agreement, the Ancillary Documents or any certificate or instrument delivered by or on behalf of Seller Parties under pursuant to this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and Agreement;
(iiic) any Excluded Liabilities Asset or any Liability of Seller or a Shareholder other than Assumed Liabilities;
(d) any Closing Indebtedness or Transaction Expense to the extent not identified and paid at Closing;
(e) any (A) Taxes of any of the Seller Parties with respect to periods ending for a Pre-Closing Tax Period; (B) Taxes imposed on the Seller Parties as a result of being a member of any consolidated, combined or unitary group on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against ,; (C) any Taxes of any Person imposed on the Seller Parties hereunderas a transferee or successor, by contract or otherwise, which Taxes relate to a transaction or event occurring prior to the Buyer Indemnitee shall first proceed against Closing; and (D) all Transfer Taxes; in each case;
(f) any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Accountproducts (or components thereof) or services performed, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against provided by or on behalf of the Seller Partiesduring any pre-Closing period; provided that indemnity pursuant to this subsection (f) is limited to Losses resulting from an actual determination of liability, and shall not include costs of litigation or attorneys’ fees with respect to third party claims where no actual product or services related liability is determined to exist; or
(g) any Third-Party Claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of Seller Parties or any of its Affiliates (other than the Purchased Assets) conducted, existing or arising on or prior to the Closing Date.
Appears in 1 contract
Indemnification by Seller Parties. Subject to the other terms and conditions of this ARTICLE VII, Seller PartiesParties shall, jointly and severally, agree to indemnify, defend, save indemnify and hold Buyer, and defend each of Buyer’s agents, employees, Affiliates, officers, Buyer and directors (each individually, “Buyer Indemnitee”) harmless from and against any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future its Affiliates (including the Company) and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) their respective Representatives (collectively, “LossesBuyer Indemnitees”) incurredagainst, suffered and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by any Buyer Indemnitee which is caused by, resulting from or imposed upon, Buyer Indemnitees based upon, arising out of: , with respect to or by reason of:
(ia) any inaccuracy in or breach of any representation of the representations or warranty of any warranties of Seller Parties contained in Section 5 of this Agreement Agreement, the Disclosure Schedules or in any certificate or instrument delivered by or on behalf of any Seller Parties hereunder; Party at the Closing pursuant to this Agreement (iiother than in respect of Section 3.22, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to ARTICLE VI), as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date (including any dates specified in the Disclosure Schedules), the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any covenant, agreement or obligation of to be performed by any of Seller Parties under Party pursuant to this Agreement (other than any breach or violation of, or failure to fully perform, any exhibitcovenant, scheduleagreement, certificate undertaking or obligation in ARTICLE VI, it being understood that the sole remedy for any other document furnished in connection herewith; and such breach, violation or failure shall be pursuant to ARTICLE VI);
(iiic) any Excluded Transaction Expenses or Indebtedness of the Company outstanding as of the Closing, to the extent not deducted from the Purchase Price in the determination of the Closing Date Payment pursuant to Section 2.04(a); provided, however, that Current Liabilities shall be excluded to the extent included in the Estimated Closing Working Capital Statement;
(d) any adverse financial impacts to Buyer or its Affiliates as a result of adjustments required to be made by Buyer to inventory amounts shown on the Balance Sheet after Closing because of the failure of inventory amounts shown on the Balance Sheet to be Consistent with Past Practice, to the extent any Taxes such adverse financial impacts were not included in the final determination of Closing Working Capital pursuant to Section 2.04, above; or
(e) any of claims for benefits under any medical, vision, dental or disability Benefit Plan to the extent (i) such claims were submitted to the Company, or otherwise known by Seller Parties with respect to periods ending on or Parties, prior to the Closing Date. In , and (ii) the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount of such claims were not included in the Escrow Account. If there is an insufficient amount available in the Escrow Accountfinal determination of Closing Working Capital pursuant to Section 2.04, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Partiesabove.
Appears in 1 contract
Indemnification by Seller Parties. (a) The Seller Parties, jointly and severally, agree to indemnify, defend, save indemnify and hold harmless Buyer, its Affiliates and each of Buyer’s agents, employees, Affiliatestheir respective directors, officers, employees and directors Affiliates (each individually, “"Buyer Indemnitee”Indemnified Parties") harmless from and against any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurredLosses that may be sustained, suffered or sustained incurred by Buyer, its Affiliates or any other Buyer Indemnitee which is caused by, resulting from or Indemnified Party arising out of: of or relating to (i) any inaccuracy in or breach of any representation or warranty of any of Seller Parties the representations and warranties contained in Section 5 of this Agreement or in any certificate delivered by any Seller Parties hereunder; Agreement, (ii) any breach or nonperformance of any covenant covenants or agreement set forth herein agreements made by any Seller Parties in or any non-fulfillment of any obligation of any of Seller Parties under pursuant to this Agreement or any exhibitAgreement, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities Liability, or (iv) any Taxes claim by any former owner of Equity Securities of any Seller Entity arising out of or attributable to such person's purchase, ownership or disposition of such Equity Securities. Subject to clause (b) below, Buyer Indemnified Parties may bring a claim against any Seller Party for the full amount of any Losses incurred by any Buyer Indemnified Parties in connection with any Asset Purchase Agreement indemnification claim hereunder and shall not be required to pursue such claim against all Seller Parties with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against join all Seller Parties in any proceeding.
(b) Except as provided in Section 6.2(c), the Seller Parties hereundershall not be liable for any claims under Section 6.2(a) arising out of a breach of representation or warranty (other than the representations and warranties contained in any Excluded Section) until the aggregate amount due in respect of such claims and indemnification claims under the Software Sale Agreement exceeds $25,000 (the "Threshold"). For avoidance of doubt, (i) Buyer's right to reduce any payment due to any Seller Party or Parties on any anniversary of the Effective Date by the Buyer Indemnitee Set-Off Amount for such Anniversary Date or by the amount of any additional deposits into the Disbursement Account pursuant to Section 1.6(d) shall first proceed against be exercisable without regard to whether the indemnifiable Losses of the Buyer Indemnified Parties hereunder and/or under the Software Sale Agreement meet or exceed the Threshold, and any such payment and reductions effected by Buyer shall not be included in indemnifiable Losses in determining whether the Threshold has been met and (ii) indemnification claims by Buyer pursuant to the Transition Services Agreement may be made without regard to whether the amount of such claims equal or exceed the Threshold, and such claims shall not be included in determining whether the Escrow AccountThreshold has been met. If there is an insufficient such aggregate amount available exceeds the Threshold, then the Seller Parties shall be liable for the entire amount of such claims and not merely the amount exceeding the Threshold. All claims shall be measured net of any insurance recoveries received by Buyer in respect of such claim. Notwithstanding anything in this Article VI to the Escrow Accountcontrary, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Parties' aggregate liability under this Section 6.2 and Section 4.3 of the Software Sale Agreement shall not exceed the Consideration, except that Xxxxx Xxxxxx'x aggregate liability under this Section 6.2 shall not exceed the Purchase Price.
(c) For purposes of determining Buyer's Losses arising out of or attributable to the inaccuracy or breach of the Seller Parties representations and warranties contained herein, Buyer's Losses attributable to each Transferred Contract (other than Backlog Contracts) listed on Section 1.1(d) of the Seller Disclosure Schedule as a currently active license or lease that is either (i) not an executed and installed license or lease for its specified term, or (ii) the terms of which are not accurately described in such schedule shall be calculated as follows:
(A) For Transferred Contracts that were listed on Section 1.1(d) of the Seller Disclosure Schedule that are no longer in effect and should not have been so listed, Buyer's Losses shall equal the product of the monthly payment shown as due under such listed Contract times the number of months shown as remaining in its term, and (B) for Transferred Contracts listed on Section 1.1(d) of the Seller Disclosure Schedule that are in effect, but for which the actual terms vary adversely from the terms set forth on Section 1.1(d) of the Seller Disclosure Schedule, an amount equal to the difference between (x) the total of payments remaining under that lease or license as set forth in Section 1.1(d) of the Seller Disclosure Schedule and (y) the total of the payments actually remaining under that Transferred Contract (each such amount being a "Contract Balance"). The aggregate amount of Buyer's Losses determined in accordance with the preceding sentence shall be reduced by the Contract Balance due from each customer of the Seller Entities acquired by Buyer that is a party to an executed and installed lease for its specified term that should have been listed but was omitted from Schedule 1.1(d) (other than Backlog Contracts) or for a Transferred Contract listed on Sectoin 1.1(d) of the Seller Disclosure Schedule the terms of which are more favorable than those set forth on Section 1.1(d) of the Seller Disclosure Schedule. The net amount of Losses described in this Section 6.2(c) shall be Asset Purchase Agreement computed as of (i) the date for the disbursement to the Seller Parties specified in Section 1.6(c) and (ii) the first through fourth anniversaries of the Effective Date, and any disbursement to the Seller Parties or deposit or payment by Buyer due on each such date shall be reduced by the Buyer's net Losses as of such date, less the aggregate amount previously recovered by Buyer pursuant to this Section 6.2(c), (but only if such amount is a positive number). The disbursement or deposit reductions required by this Section 6.2(c) shall be effected without regard whether the amount of the required reduction exceeds the Threshold.
Appears in 1 contract
Samples: Asset Purchase Agreement (DealerTrack Holdings, Inc.)
Indemnification by Seller Parties. Subject to the limitations set forth in this Article 6, each of the Seller PartiesParties shall, jointly and severally, agree to indemnifyindemnify and defend Buyer and its Affiliates and their respective Representatives (collectively, defend, save and hold Buyerthe “Buyer Indemnified Parties”) against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damages, indebtedness, obligations, liabilities, losses, damages, claims, actions, suits, demands, causes of action, costs, expenses, assessments, penalties, fines, judgmentsinterest, awards, settlements, costs, fees, expenses or deficiencies judgments and penalties of any nature whatsoever and whether accrued or fixed(including, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other reasonable legal costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceedingexpenses) (collectively, “Losses”), arising or resulting from:
(a) incurredAny inaccuracy in or breach of any of the representations or warranties of Seller Parties contained in this Agreement, suffered or sustained any other Transaction Document, as of the Effective Date and as of the Closing Date;
(b) Any breach or non-fulfillment of any covenant, agreement or obligation to be performed by any Seller Party pursuant to this Agreement or any other Transaction Document prior to Closing;
(c) Any Excluded Asset, any Retained Liability, or any Loss incurred by Buyer Indemnitee which is caused byas a result of Seller Parties performance, or any employees or agents thereof, under the Transition Services Agreement;
(d) Any Third Party Claim (as defined in Section 6.8(b)) based upon, resulting from or arising out of: from operation of the Business, properties, assets or Liabilities (iexcept as expressly assumed herein) any breach of any representation Seller Party or warranty of any of Seller Parties contained in Section 5 of this Agreement their Affiliates conducted, existing or in any certificate delivered by any Seller Parties hereunder; (ii) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending arising on or prior to the Closing Date;
(e) Buyer’s inability to enter into contracts under Buyer’s tax identification number with governmental and commercial payors (collectively, “Payors”) within 120 days after the Closing Date that (i) collectively comprise at least 90% of Seller’s Collections (as defined below) in the 12-month period ending on the Effective Date, and (ii) provide for financial reimbursement at payment rates comparable to or more favorable than those the applicable Seller Party, as applicable, has been during such period entitled to receive under its contract with such Payor. In the event that a Buyer Indemnitee has a claim for indemnification against the The term “Seller’s Collections” shall mean all cash collections of Seller Parties hereunder, the Buyer Indemnitee shall first proceed against (including those assigned to Seller Parties from any amount Clinical Provider) attributable to professional medical and other healthcare services rendered in the Escrow Accountoperation of the Business, but excluding all amounts received (i) directly from a patient, (ii) on account of goods sold (including Pharmaceutical Inventory) to a patient, and (iii) from an employer for services rendered to its employee. If there is an insufficient amount available in A list of the Escrow AccountPayors that made payments comprising Seller’s Collections, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Parties.amount of Seller’s Collections attributable to each Payor shall be set forth on Schedule 6.2(e); or
Appears in 1 contract
Samples: Asset Purchase Agreement (American Caresource Holdings, Inc.)
Indemnification by Seller Parties. Subject to the limitations and provisions of Section 6.5, Seller Parties, Parties shall jointly and severally, agree to severally indemnify, defend, save defend and hold Buyerharmless the Purchaser and its Affiliates, and each of Buyer’s agentstheir respective officers, directors, managers, employees, Affiliatesmembers, officerspartners, stockholders, agents, and directors other representatives (each individuallycollectively, “Buyer Indemnitee”"Purchaser Indemnitees") harmless from from, against and against in respect of any and all losses, costs, reasonable expenses, claims, damages, indebtednessActions, obligationssuits, liabilitiesproceedings, losseshearings, expensesinvestigations, assessmentscharges, complaints, demands, injunctions, judgments, Orders, decrees, rulings, directions, dues, penalties, fines, judgmentsamounts paid in settlement in accordance with this Article 6, awardsLiabilities, settlementsTaxes, costsEncumbrances, and fees, expenses or deficiencies of any nature whatsoever including interest, penalties and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, reasonable attorneys and whether arising in the past, present or future (including and without limitation, attorneys’ collection agency fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) disbursements (collectively, “Losses”) incurred"Damages"), suffered or sustained by any Buyer Indemnitee which is caused by, resulting from or arising out of: , based upon or otherwise in respect of:
(ia) any inaccuracy in or breach of any representation or warranty of Seller made in or pursuant to this Agreement; provided, however, that for purposes of determining the amount of any Damages that are indemnifiable under this Section 6.1(a), each such representation and warranty shall be read without regard and without giving effect to any materiality or Material Adverse Effect or similar standard or qualification contained therein (as if such standard or qualification were deleted from such representation or warranty), but except for purposes of Seller Parties Section 6.5(a), the materiality or Material Adverse Effect or similar standards or qualifications contained in Section 5 such representations and warranties will be considered for purposes of this Agreement determining whether or in not there has been a breach of such representation and warranty prior to determining the amount of any certificate delivered by any Seller Parties hereunder; Damages, if any;
(iib) any breach or nonfulfillment of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of either Seller Parties under Party contained in this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; the Transition Services and Arrangements Agreement;
(iiic) any all Excluded Liabilities and Obligations; or
(d) all Excluded Assets; excluding any such Damages arising out of, based upon or any Taxes otherwise in respect of any of Damages for which Purchaser is obligated to indemnify any Seller Parties with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Partiesunder Section 6.2.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Autobytel Inc)
Indemnification by Seller Parties. The Seller Parties, Parties hereby agree to jointly and severally, agree to severally indemnify, defend, save defend and hold Buyerharmless Purchaser Parties and their respective officers, and each of Buyer’s agentsdirectors, equity holders, employees, Affiliatesagents, officersrepresentatives, affiliates, successors and assigns (each an “Indemnified Purchaser Party”) of, from, against, and directors in respect of or relating (each individually, “Buyer Indemnitee”directly or indirectly) harmless from and against to any and all loss, liability, claim, damages, indebtednesscost, obligationsfees and expense (including, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, reasonable attorneys’ fees and other costs disbursements), of any kind and expenses incident to any claimdescription, demand, action, suit, arbitration, investigation inchoate or similar proceeding) otherwise (collectively, “Losses”) incurred, suffered or sustained by any Buyer Indemnitee which is caused by), resulting from (directly or arising out of: indirectly) from, relating to or incident to:
8.1.1 Any and all Encumbrances (iincluding leases) against any of the Assets, and all other liabilities and obligations of or relating to the Seller Parties, the Assets and/or the Business, whether known or unknown, mature or contingent;
8.1.2 Any misrepresentation, breach of any representation or warranty of any of Seller Parties contained in Section 5 of this Agreement warranty, or in any certificate delivered by any Seller Parties hereunder; (ii) any breach or nonfulfillment of any covenant or agreement set forth herein by any obligation on the part of the Seller Parties made or any non-fulfillment of any obligation of any of Seller Parties under given in or with respect to this Agreement or any exhibitof the Transaction Documents, schedule, certificate or from any misrepresentation in or omission from any schedule hereto or other document instrument furnished or to be furnished to Purchaser in connection herewithwith the transactions provided for in this Agreement, subject to the limitation set forth in Section 5.1.12 hereof; and
8.1.3 Any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses (iiiincluding reasonable attorney, engineer, and expert witness fees) any Excluded Liabilities or any Taxes of incident to any of Seller Parties with respect to periods ending the foregoing provisions or that arise from facts and circumstances existing on or prior to the Closing DateClosing. In The Seller Parties hereby waive any and all contractual, statutory and other causes of action, at law or in equity, which the event Seller Parties have or may have now or in the future against Purchaser Parties or any Indemnified Purchaser Party arising out of or in any manner connected with the foregoing. Without limiting the generality of the foregoing, the Seller Parties agree that a Buyer Indemnitee has a claim for indemnification they will continue to defend, at their own expense, any pending or future actions against the Seller Parties hereunderwhich are based on dealings prior to the Closing Date with customers, suppliers and other parties associated with the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller PartiesBusiness.
Appears in 1 contract
Indemnification by Seller Parties. (a) From and after the Closing, Seller Parties, jointly and severally, agree to Parties shall indemnify, defend, save defend and hold Buyerharmless each Buyer Indemnitee from, against and in respect of, and pay on behalf of or reimburse each of Buyer’s agentsBuyer Indemnitee as and when incurred for, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) harmless from and against any and all damageslosses, indebtednessliabilities, obligations, liabilitiesclaims, lossesdamages, costs, expenses, assessments, penalties, fines, judgmentspayments, awards, settlementsTaxes, costsinterest and judgments (at equity or at law, fees, expenses including statutory and common) whenever arising or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future incurred (including reasonable legal, accountant, investigator and without limitation, attorneys’ expert fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceedingexpenses) (collectively, “Losses”) incurred, suffered or sustained by any which such Buyer Indemnitee which is caused byincurs, resulting suffers, sustains or becomes subject to (regardless of whether or not such Losses relate to any Third Party Claim) as a result of, based upon, in connection with, arising from or arising out by reason of: , without duplication:
(i) any breach of of, or inaccuracy in, any representation or warranty of any of Seller Parties contained in Section 5 of this Agreement or in any certificate delivered made by any Seller Parties hereunder; Party in this Agreement;
(ii) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of of, or any failure to perform, any covenant, agreement or obligation of any of Seller Parties under Party contained in this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and Agreement;
(iii) any Excluded Liabilities Closing Indebtedness or Transaction Expenses not taken into account in the adjustment of the Net Proceeds Amount under Section 2.4;
(iv) all Indemnified Taxes;
(v) any errors in the Payment Spreadsheet or any Taxes claim or other Proceeding by any Person holding or claiming to hold any Parent Equity Unit or any other Equity Interest in any Company or any right or interest to or in the consideration paid or payable in connection with the transactions contemplated by this Agreement, other than for payment of any the applicable portion of Seller Parties the Debt Distribution Amount and Net Proceeds Amount as expressly provided pursuant to Article II;
(vi) the PPP Loan; and
(vii) those items set forth on Schedule 8.1(a)(vii) (collectively, the “Specified Matters”).
(b) Notwithstanding the foregoing, except in the case of Fraud or claims with respect to periods ending breaches of or inaccuracies in any Fundamental Representation, Seller Parties shall not have any liability:
(i) under Section 8.1(a)(i) other than Losses in excess of $5,000 (the “Per Claim Threshold”) resulting from any single claim or series of claims based on the same or prior similar facts, but once the Per-Claim Threshold has been met with respect to any claim or series of claims based on the same or similar facts, Seller Parties shall be liable for the full amount of such Losses under Section 8.1(a)(i) (subject to the Closing Date. In other limitations herein);
(ii) under Section 8.1(a)(i) until the event aggregate amount of all Losses sustained by the Buyer Indemnitees exceeds $425,000 (the “Deductible”), in which case Seller Parties shall be liable only for the amount of such Losses in excess of the Deductible; and
(iii) under Section 8.1(a)(i) in an aggregate amount in excess of the Indemnification Escrow Amount; provided, that a neither the provisions of this Section 8.1(b) nor any other provision in this Agreement shall limit any rights or remedies of any Buyer Indemnitee has a claim for indemnification against under or with respect to the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller PartiesR&W Policy.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (CNL Strategic Capital, LLC)
Indemnification by Seller Parties. Subject to the other terms and conditions of this ARTICLE X, Seller Parties, jointly and severally, agree to indemnifyshall indemnify and defend each of Buyer and its Affiliates (including the Company) and their respective Representatives (collectively, defend, save and hold Buyerthe “Buyer Indemnitees”) against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered Losses incurred or sustained by any Buyer Indemnitee which is caused by, resulting from or imposed upon, the Buyer Indemnitees based upon, arising out of: , with respect to or by reason of:
(ia) any inaccuracy in or breach of any representation of the representations or warranty warranties of any of Seller Parties Sellers contained in Section 5 of this Agreement or in any certificate or instrument delivered by or on behalf of Sellers pursuant to this Agreement (other than in respect of Section 3.20, it being understood that the sole remedy for any Seller Parties hereunder; such inaccuracy in or breach thereof shall be pursuant to ARTICLE VIII);
(iib) any breach or non-fulfillment of any covenant or agreement set forth herein by of, or obligation to be performed by, Sellers pursuant to this Agreement (other than any Seller Parties breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in ARTICLE VIII, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to ARTICLE VIII);
(c) any breach or non-fulfillment of any covenant or agreement of, or obligation to be performed by the Sellers pursuant to their respective Key Employment Agreement;
(d) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not deducted from the Base Purchase Price in the determination of the Closing Date Payment pursuant to Section 2.04(a);
(e) enforcing the Buyer Indemnitees’ indemnification rights provided for under this Section 10.02;
(f) any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished the matters set forth in connection herewithSchedule 10.02(f) (the “Specified Indemnities”); and or
(iiig) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller PartiesFraud-Type Claims.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Gse Systems Inc)
Indemnification by Seller Parties. (i) From and after the Closing, subject to the limitations set forth in this Article X, each Seller PartiesParty shall, to the extent not prohibited by applicable Law, jointly and severallyseverally reimburse, agree to indemnify, defend, save defend and hold harmless each of Buyer, its Affiliates and each of Buyer’s agentstheir respective permitted successors and assigns, stockholders, members, partners, officers, directors, employees, Affiliatesagents and representatives and, officerssolely with respect to any Losses related to any breach of or noncompliance with the provisions of Section 6.17(b), and directors the Trustee of any related Series (each individuallycollectively, the “Buyer IndemniteeIndemnitees”) harmless from ), against and against any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies in respect of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demanddamage, actionloss, liability, assessment, cost, disbursement, settlement, judgment, award, suit, arbitrationdemands, investigation payment, fine, penalty or similar proceedingexpense (including reasonable legal fees and expenses) of any kind or nature whatsoever (collectively, excluding consequential or incidental damages, “Losses”) incurred, suffered or sustained by any that a Buyer Indemnitee which is caused by, may incur or suffer resulting from or arising out offrom, related to or incurred or suffered in connection with: (iA) any breach of any representation or warranty of any Seller Party set forth in Article IV hereof (in each case disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of Seller Parties contained in Section 5 of this Agreement similar import) or in any certificate delivered Closing Document to which any Seller Party or any of its respective Affiliates is or will be a party; (B) the nonperformance, noncompliance or breach by any Seller Parties hereunder; (ii) Party or any breach of its respective Affiliates of any agreement, obligation or covenant or agreement set forth herein to be performed by any Seller Parties Party or any non-fulfillment of any obligation of any of Seller Parties its respective Affiliates under this Agreement or any exhibit, schedule, certificate Closing Document to which any Seller Party or any other document furnished in connection herewithof its respective Affiliates is or will be a party; and (iiiC) any Excluded Liabilities Action disclosed on Schedule 4.1(d) hereto; (D) any Seller’s activities as Servicing Party under the Servicing Agreements before the Closing; or (E) any failure of any Seller Party or any Taxes of its Affiliates to assume, pay, perform and discharge any Excluded Liability.
(ii) The parties hereto agree that no indemnification of Seller Parties with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for will be required under Section 10.2(a)(i)(A) hereof until the aggregate amount of all Losses suffered and incurred by all Buyer Indemnitees which are subject to indemnification against the by Seller Parties hereunderpursuant to Section 10.2(a)(i)(A) hereof exceeds $250,000, in which event Seller Parties shall be required to pay the entire amount of such Losses; provided that to the extent such Losses relate to breaches of representations and warranties set forth in Section 4.1(a), Section 4.1(b), Section 4.1(e) or Section 4.1(g), this Section 10.2(a)(ii) shall not apply. Sellers’ aggregate obligation for all matters to be indemnified under Section 10.2(a)(i)(A) hereof shall not exceed an aggregate amount equal to 50% of the Purchase Price (the “Cap”); provided that if such Losses relate to breaches of representations and warranties set forth in Section 4.1(a), Section 4.1(b), Section 4.1(d), Section 4.1(e) or Section 4.1(g), the Buyer Indemnitee Cap shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Partiesnot apply.
Appears in 1 contract
Indemnification by Seller Parties. Subject to the other terms and conditions of this Article 7, the Seller PartiesParties shall, jointly and severally, agree to indemnify, defend, save indemnify and hold Buyer, and defend each of Buyer’s agents, employeesArcadia and their respective Affiliates and Representatives (collectively, Affiliates, officersthe “Buyer Indemnitees”) against, and directors (shall hold each individually, “Buyer Indemnitee”) of them harmless from and against against, and shall pay and reimburse each of them for, any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered Losses incurred or sustained by any Buyer Indemnitee which is caused by, resulting from or imposed upon, the Buyer Indemnitees based upon, arising out of: , with respect to or by reason of:
(ia) any inaccuracy in or breach of any representation of the representations or warranty warranties of any of a Seller Parties Party contained in Section 5 of this Agreement Agreement, the Transaction Documents or in any certificate or instrument delivered by or on behalf of any Seller Parties hereunder; Party pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (iiexcept for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any covenant, agreement or obligation to be performed by any Seller Party pursuant to this Agreement, the Transaction Documents or any certificate or instrument delivered by or on behalf of any Seller Party pursuant to this Agreement;
(c) any Liability or Third Party Claim arising from any occurrence, failure to perform, improper performance, warranty or other breach, default, action, omission, misconduct or violation of or by any Seller Parties under this Agreement Party, or any exhibit, schedule, certificate or any other document furnished otherwise in connection herewith; and (iii) any Excluded Liabilities with the use, ownership or any Taxes operation by a Seller Party of any of Seller Parties with respect to periods ending the Business or the Purchased Assets, on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against ;
(d) any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Parties.Excluded Asset or any Excluded Liability;
Appears in 1 contract
Samples: Asset Purchase Agreement (Arcadia Biosciences, Inc.)
Indemnification by Seller Parties. Seller Parties, and Xxxxxxxx shall jointly and severally, agree to indemnify, defend, save severally indemnify and hold Buyerharmless the Purchaser, the Company and each of Buyer’s agentsPetrenko, employeestheir affiliates and their respective heirs, Affiliatessuccessors and assigns (and their respective shareholders, officers, directors, employees and directors agents) (each individually, collectively the “Buyer IndemniteePurchaser Indemnified Parties”) harmless from and against any and all damages, indebtednessfines, obligationsfees, penalties, deficiencies, liabilities, lossesclaims, expenseslosses (including loss of value), assessments, penalties, finesdemands, judgments, awards, settlements, costsactions, fees, expenses or deficiencies of any nature whatsoever obligations and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to (including interest, court costs and fees and costs of attorneys, accountants and other experts or other expenses of litigation or other proceedings or of any claim, demand, action, suit, arbitration, investigation default or similar proceedingassessment) (collectively, “Losses”) incurredthat may be asserted against, or paid, suffered or sustained incurred by any Buyer Indemnitee which is caused byPurchaser Indemnified Party that, resulting from directly or arising indirectly, arise out of: , result from, are based upon or relate to (ia) any breach the inaccuracy, as of the date of this Agreement or the Closing, of any representation or warranty of made by any of the Seller Parties contained in Section 5 of this Agreement or in Agreement; (b) any certificate delivered failure by any the Seller Parties hereunder; (ii) any breach of any covenant to perform or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of fulfill any of their covenants or agreements required to be performed by the Seller Parties under this Agreement or any exhibitAgreement; (c) claims, schedule, certificate litigation or any other document furnished proceedings initiated by or involving Xxxxxx Xxxxx existing currently or initiated in connection herewiththe future; (d) present or future Seller’s shareholder claims, litigation or proceedings against the Purchaser Indemnified Parties arising out of this transaction; (e) any claims arising under the Advance Financial Loan, the Credit Cash Loan and the Hope Capital Loan; and (iiif) any Excluded Liabilities liability or any Taxes obligation of Seller of any nature whatsoever arising out of the conduct of Seller Parties with respect to periods ending on or prior to the Closing Date. In and to which Seller had Knowledge; provided, however, that Seller and Xxxxxxxx shall not be obligated to indemnify the event that a Buyer Indemnitee has Purchaser Indemnified Parties if the claim was directly or indirectly caused by the Purchaser Indemnified Parties; and, provided, further, that, for purposes of any limitation on indemnification resulting from the application of the immediately preceding proviso, neither the execution of this Agreement nor the consummation of any transactions contemplated hereby is intended or shall be construed, directly or indirectly, as having caused a claim for indemnification to be brought against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Purchaser Indemnified Parties.
Appears in 1 contract
Indemnification by Seller Parties. Subject to the other terms and conditions of this Article VII, Seller Partiesand Parent, jointly and severallyseverally (each a “Seller Party” and together the “Seller Parties”), agree to indemnifyshall indemnify and defend each of Buyer and its Affiliates and their respective Representatives (collectively, defend, save and hold Buyerthe “Buyer Indemnitees”) against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damagesLosses incurred or sustained by, indebtednessor imposed upon, obligationsthe Buyer Indemnitees based upon, liabilitiesarising out of, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses with respect to or deficiencies by reason of:
(a) any inaccuracy in or breach of any nature whatsoever and whether accrued of the representations or fixedwarranties of Seller or Parent contained in this Agreement, known the other Transaction Documents or unknownin any DM3\7875356.18 certificate or instrument delivered by or on behalf of Seller or Parent pursuant to this Agreement;
(b) any breach or non-fulfillment of any covenant, absolute agreement or contingentobligation to be performed by Seller or Parent pursuant to this Agreement, matured any other Transaction Document or un-matured, liquidated any certificate or unliquidated, determined instrument delivered by or determinable, on behalf of Seller or off-balance sheet, and whether arising in the past, present Parent pursuant to this Agreement;
(c) any Excluded Asset or future any Excluded Liability;
(including and without limitation, attorneys’ fees and other costs and expenses incident to d) any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered or sustained by any Buyer Indemnitee which is caused byThird Party Claim based upon, resulting from or arising out of: (i) any breach of any representation the business, operations, properties, assets or warranty obligations of the Seller or any of Seller Parties contained in Section 5 of this Agreement its Affiliates conducted, existing or in any certificate delivered by any Seller Parties hereunder; (ii) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending arising on or prior to the Closing Date. In , including any Product shipped and invoiced by Seller or any of its Affiliates or agents, distributors or others acting on behalf of Seller or any of its Affiliates; and
(e) any fraud, intentional misrepresentation or willful misconduct by Seller or Parent or any Affiliate of Seller or Parent or any their respective Representatives relating to this Agreement or any of the event that a Buyer Indemnitee has a claim for indemnification against other Transaction Documents or any of the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Partiestransactions contemplated hereby or thereby.
Appears in 1 contract
Indemnification by Seller Parties. Subject to the other terms and conditions of this ARTICLE X, Seller Parties, jointly and severally, agree to indemnifyshall indemnify and defend each of Buyer and its Affiliates (including the Company) and their respective Representatives (collectively, defend, save and hold Buyerthe "Buyer Indemnitees") against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered Losses incurred or sustained by any Buyer Indemnitee which is caused by, resulting from or imposed upon, the Buyer Indemnitees based upon, arising out of: , with respect to or by reason of:
(ia) any inaccuracy in or breach of any representation of the representations or warranty warranties of any of Seller Parties Sellers contained in Section 5 of this Agreement or in any certificate or instrument delivered by or on behalf of Sellers pursuant to this Agreement (other than in respect of Section 3.20, it being understood that the sole remedy for any Seller Parties hereunder; such inaccuracy in or breach thereof shall be pursuant to ARTICLE VIII);
(iib) any breach or non-fulfillment of any covenant or agreement set forth herein by of, or obligation to be performed by, Sellers pursuant to this Agreement (other than any Seller Parties breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in ARTICLE VIII, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to ARTICLE VIII);
(c) any breach or non-fulfillment of any covenant or agreement of, or obligation to be performed by, Xxxxxx X. Xxxx pursuant to the Key Employment Agreement between the Company and Xxxxxx X. Xxxx (the "Horn Employment Agreement");
(d) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not deducted from the Purchase Price in the determination of the Closing Date Payment pursuant to Section 2.04(a);
(e) enforcing the Buyer Indemnitees' indemnification rights provided for under this Section 10.02;
(f) any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished the matters set forth in connection herewithSchedule 10.02(f); and or
(iiig) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller PartiesFraud-Type Claims.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Gse Systems Inc)
Indemnification by Seller Parties. (a) The Seller Parties, jointly and severally, agree to indemnify, Parties shall defend, save indemnify and hold Buyer, Purchaser and each of Buyer’s agents, employees, Affiliatesthe other USI Companies and their respective directors, officers, shareholders, members and directors employees (each individually, the “Buyer IndemniteePurchaser Indemnitees”) harmless from and against any and all damagesAdverse Consequences resulting from, indebtednessarising out of or otherwise relating to (i) (A) any inaccurate representation or warranty made by the Seller Parties, obligationsor any of them, liabilitiesin this Agreement as of the date hereof or as of the Closing Date, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses (B) any breach or deficiencies default in the performance of any nature whatsoever and whether accrued of the covenants or fixedagreements made by the Seller Parties, known or unknownany of them, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheetin this Agreement, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to C) any claim, demand, action, suit, arbitration, investigation action or similar proceeding) (collectively, “Losses”) incurred, suffered cause of action or sustained by any Buyer Indemnitee which is caused by, other liability arising out of or resulting from or arising out of: (i) any breach of any representation relating to the Excluded Liabilities or warranty of any of Seller Parties contained in Section 5 of this Agreement or in any certificate delivered by any Seller Parties hereunderExcluded Assets; (ii) any breach the ownership and operation of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; the Company Business and/or Acquired Assets prior to the Effective Time and (iii) any Excluded Liabilities buy-back or other arrangements pursuant to which any Person has any direct or indirect right to acquire, purchase or otherwise obtain the right to provide insurance brokerage services to any client or prospective client of Seller or any Taxes other business of Seller.
(b) The representations and warranties of the Seller Parties contained in ARTICLE 4, and the covenants of the Seller Parties contained herein, are joint and several obligations. Accordingly, each Seller Party will be responsible, to the extent provided hereunder, for the entirety of any Adverse Consequences suffered by any Purchaser Indemnitee thereof as a result of a breach by any Seller Party of any such representation and warranty.
(c) The Seller Parties specifically acknowledge and agree that monetary damages will not be an adequate remedy for a breach of any of Seller Parties with respect the Restrictive Covenants, and that irreparable injury will result to periods ending on or prior to Purchaser and/or the Closing Date. In other USI Companies and their respective successors in interest in the event that a Buyer Indemnitee has a claim for indemnification against of any such breach. Accordingly, the Seller Parties hereunderagree that Purchaser or such other USI Company (as applicable) shall be entitled to equitable relief in any court of competent jurisdiction, including, without limitation, a temporary or permanent injunction, restraining and enjoining such Party, or any Person with which such Party is associated or by which such Party is employed, from further violations of such provisions, without proof of actual damages or otherwise and without the Buyer Indemnitee shall first proceed against posting of any amount security in the Escrow Account. If there connection therewith, in addition to any other remedy to which Purchaser or such other USI Company is an insufficient amount available entitled at law or in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Partiesequity.
Appears in 1 contract
Samples: Asset Purchase Agreement (Northwest Bancshares, Inc.)
Indemnification by Seller Parties. Subject to the other terms and conditions of this ARTICLE IX, Seller Parties, jointly and severally, agree to indemnifyshall indemnify and defend each of Buyer and its Affiliates (including the Company) and their respective Representatives (collectively, defend, save and hold Buyerthe "Buyer Indemnitees") against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered Losses incurred or sustained by any Buyer Indemnitee which is caused by, resulting from or imposed upon, the Buyer Indemnitees based upon, arising out of: , with respect to or by reason of:
(ia) any inaccuracy in or breach of any representation of the representations or warranty warranties of any of Seller Parties Sellers contained in Section 5 of this Agreement or in any Ancillary Document, certificate or instrument delivered by or on behalf of a Seller Party pursuant to this Agreement (other than in respect of Section 3.20, it being understood that the sole remedy for any Seller Parties hereunder; such inaccuracy in or breach thereof shall be pursuant to ARTICLE VII);
(iib) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any covenant, agreement or obligation to be performed by Sellers pursuant to this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in ARTICLE VII, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to ARTICLE VII); or
(c) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not deducted from the Purchase Price in the determination of the Closing Date Payment pursuant to Section 2.04(a);
(d) enforcing the Buyer Indemnitees' indemnification rights provided for under this Section 9.02;
(e) any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished the matters set forth in connection herewithSchedule 9.02(e); and and
(iiif) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller PartiesFraud-Type Claims.
Appears in 1 contract
Indemnification by Seller Parties. Seller Parties, jointly Parties shall reimburse and severally, agree to indemnify, defend, save --------------------------------- indemnify and hold Buyer, Purchaser and each of Buyer’s agentsits directors, officers, shareholders, employees, Affiliatesrepresentatives and agents (collectively, officers, the "Purchaser Parties") ----------------- harmless against and directors (each individually, “Buyer Indemnitee”) harmless from and against in respect of any and all damagesdamage, indebtednessloss, liability, deficiency, settlement payments, costs, levies, expenses or obligations, liabilitieswhether or not the result of a third party claim (collectively, losses"Damages"), expensesin ------- connection with, resulting from or relating to:
(a) any and all liabilities or obligations of any nature whatsoever of or relating to claims for federal, state, local, foreign or other taxes assessed against Purchaser, the Business or the Purchased Assets, which arise out of or are related to Seller's operation or conduct of the Business prior to the Closing, and not specifically assumed by Purchaser hereunder.
(b) any and all liabilities or obligations of any nature whatsoever of or relating to Seller, or relating to or arising out of the Purchased Assets prior to the Closing Date, Seller's operation of the Business prior to the Closing Date or the actions of Seller's employees, representatives or agents;
(c) any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement on the part of Seller Parties under this Agreement;
(d) any and all actions, suits, claims, allegations, proceedings, investigations, audits, demands, assessments, penalties, fines, judgments, awards, settlements, costslevies, fees, costs and other expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including without limitation reasonable audit and without limitation, attorneys’ fees and other costs and expenses legal fees) incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) of the foregoing; and
(collectively, “Losses”) incurred, suffered or sustained by any Buyer Indemnitee which is caused by, resulting from or arising out of: (ie) any breach claim that any content provided by Seller for use on any of Purchaser's websites constitutes a defamation or invasion of the right of privacy or publicity, or infringement of the copyright, trademark or other intellectual property right, of any representation or warranty of any of Seller Parties contained in Section 5 of this Agreement or in any certificate delivered by any Seller Parties hereunder; (ii) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Partiesthird party.
Appears in 1 contract
Indemnification by Seller Parties. Subject to the limitations set forth in this Article XI, each Seller Parties, Party shall jointly and severally, agree to severally indemnify, defend, save defend and hold harmless the Buyer, Xcel and each of Buyer’s agentstheir respective managers, employees, Affiliatesmembers, officers, directors, agents, attorneys and directors employees, (each individually, hereinafter “Buyer IndemniteeIndemnified Parties”) harmless from and against any and all damagesactual losses, indebtedness, obligationsclaims, liabilities, lossesdebts, expensesdamages, assessmentsfines, penalties, finescosts (in each case including, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ reasonable out-of-pocket expenses (including, without limitation, reasonable fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceedingof counsel)) that they incur (collectively, “LossesDamages”) incurred, suffered or sustained by any Buyer Indemnitee which is caused by, resulting from or arising out incurred as a result of: :
(ia) any the breach of any representation or warranty of any of the Seller Parties contained in Section 5 of this Agreement or in any certificate delivered or other instrument furnished to the Buyer by any the Seller Parties hereunder; pursuant to this Agreement;
(iib) any the material breach of, default under or nonfulfillment of any covenant covenant, obligation or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of the Seller Parties under this Agreement, any Related Agreement or the agreements and instruments contemplated therein, which is not cured within thirty (30) days from a Seller Parties’ receipt of notice thereof;
(c) the Excluded Assets;
(d) the Excluded Liabilities;
(e) any exhibit, schedule, certificate clawback of all or any portion of the Purchase Price or any other document furnished in connection herewith; and amount paid or payable by any Buyer Indemnified Party related, directly or indirectly, to any Bankruptcy Event, including the HOC ABC (iiia “Bankruptcy Clawback”);
(f) any Excluded Liabilities Proceeding disclosed in Schedule 4.9;
(g) the matters disclosed in Schedule 4.8(c);
(h) any Proceeding by or on behalf of any creditor of Seller, Parent, HOC or any Taxes of their respective Affiliates, including that certain Civil Action No. 2:18-cv-10164-AB-XXX commended by Texmont Design Limited against HOC, Parent, the Seller and Xcel on December 10, 2018 in the United States District Court for the Central District of California or any similar Proceeding;
(i) any matters related to the operation of the business of the Seller Parties with respect to periods ending on or and their Affiliates prior to the Closing Date. In Closing; or
(j) any and all actions, suits, or proceedings, incident to any of the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Partiesforegoing.
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification by Seller Parties. Subject to the limitations set forth in this ARTICLE VII, Seller Parties, Parties covenant and agree to jointly and severally, agree to severally indemnify, defend, save protect and hold Buyerharmless, Purchaser and each of Buyer’s agentsits respective officers, managers, members, directors, employees, Affiliatesconsultants, officersassigns, successors and directors affiliates (each individually, a “Buyer IndemniteePurchaser Indemnified Party” and collectively, “Purchaser Indemnified Parties”) harmless from from, against and against any and in respect of all damages, indebtedness, obligations, liabilities, losses, expensesclaims, damages, causes of action, lawsuits, administrative proceedings (including informal proceedings), investigations, audits, demands, assessments, adjustments, judgments, settlement payments, deficiencies, penalties, fines, judgments, awards, settlements, costs, fees, interest and costs and expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, limitation reasonable attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceedingdisbursements) (collectively, “LossesDamages”) incurredsuffered, suffered sustained, incurred or sustained paid by any Buyer Indemnitee which is caused byPurchaser Indemnified Parties in connection with, resulting from from, or arising out of: , directly or indirectly:
(ia) any breach of any representation or warranty of any of a Seller Parties contained Party set forth in Section 5 of this Agreement or in any schedule or certificate delivered by any or on behalf of a Seller Parties hereunder; Party in connection herewith;
(iib) any breach nonfulfillment of any covenant or agreement set forth herein by a Seller Party under this Agreement;
(c) the imposition or attempted imposition of liability on any Purchaser Indemnified Party for (i) the Excluded Assets or (ii) any liabilities or obligations of a Seller Party that are not Assumed Obligations;
(d) any Taxes properly attributable to the Purchased Assets during the period (or portion thereof) of Seller’s ownership of the Purchased Assets which are assessed against or collected from Purchaser by any Seller Parties Taxing authority;
(e) the Indemnified Litigation Claims;
(f) the Indemnified Regulatory Matters; and/or
(g) any acts or any non-fulfillment of any obligation of any omissions of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities with or any Taxes arising out of any of Seller Parties with respect to periods ending on or prior to the Closing Purchased Assets before the applicable Transfer Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Parties.
Appears in 1 contract
Indemnification by Seller Parties. Subject to the other terms and conditions of this ARTICLE VIII, the Seller PartiesParties shall indemnify and defend each of Buyer and its Affiliates (including the Company Group) and their respective Representatives (collectively, jointly and severally, agree to indemnify, defend, save and hold Buyerthe “Buyer Indemnitees”) against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered Losses incurred or sustained by any Buyer Indemnitee which is caused by, resulting from or imposed upon, the Buyer Indemnitees based upon, arising out of: , with respect to or by reason of:
(ia) any inaccuracy in or breach of any representation of the representations or warranty warranties of any of the Seller Parties contained in Section 5 of this Agreement or in any certificate or instrument delivered by any or on behalf of the Seller Parties hereunder; pursuant to this Agreement (iiother than in respect of Section 3.22, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to ARTICLE VI), as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any covenant, agreement or obligation of any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against be performed by the Seller Parties hereunderpursuant to this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in ARTICLE VI, it being understood that the Buyer Indemnitee sole remedy for any such breach, violation or failure shall first proceed against be pursuant to ARTICLE VI); or
(c) any amount Transaction Expenses or Indebtedness of the Company Group outstanding as of the Closing to the extent not deducted from the Purchase Price in the Escrow Account. If there is an insufficient amount available in determination of the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller PartiesClosing Date Payment.
Appears in 1 contract
Indemnification by Seller Parties. (a) The Seller PartiesParties shall indemnify the Purchaser and its Affiliates (including the Company and its Subsidiaries, jointly and severally, agree to indemnify, defend, save and hold Buyer, in the event that the Closing occurs) and each of Buyer’s agentstheir respective members, officers, directors, partners, employees, Affiliatesagents, officersshareholders, successors and assigns in respect of, and directors (hold each individually, “Buyer Indemnitee”) of them harmless on a Grossed-Up Basis from and against against, any and all damagesLosses suffered, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered incurred or sustained by any Buyer Indemnitee of them or to which is caused byany of them becomes subject, resulting from or from, arising out of: of or relating to (i) any misrepresentation or breach of warranty on the part of any of the Seller Parties hereunder, or any nonfulfillment of or failure to perform any covenant or agreement on the part of any of the Seller Parties or the Company contained in this Agreement, (ii) any of the Contracts listed in Section 7.6 or (iii) the ownership of, or any activity engaged in prior to the Closing by, Vishnu Company Limited (except, in the case of this clause (iii), to the extent that such Losses have been suffered in connection with a breach of any representation or warranty of any of Seller Parties contained in Section 5 4.33); provided, however, that this Section 10.1(a) shall not apply to (x) any Losses suffered by any Indemnified Party in connection with a breach of any representation or warranty contained in Section 4.33, other than any fines or penalties payable under the FCPA and any costs or expenses (including the reasonable fees and expenses of attorneys) incurred in determining or contesting any such fees or penalties, or (y) any Losses suffered by any Indemnified Party in connection with the matters described in clause (i) above, to the extent that such Losses would not have been incurred but for the completion of the Initial Public Offering. Each of the Seller Parties shall reimburse each Indemnified Party (whether or not such Indemnified Party is a party to this Agreement) for all expenses (including counsel fees and disbursements) as they are incurred by such Indemnified Party in connection with investigating and preparing or defending any Action or Proceeding relating to the matters described in clauses (i) through (iii) above (whether or not such Indemnified Party is a formal party to any such Action or Proceeding). Subject to all the limitations on the Seller Parties' obligations to indemnify contained in Article X, each of the Seller Parties jointly and severally (and the Company jointly and severally in the event the transactions contemplated by this Agreement or in any certificate delivered are not consummated) agrees that if and to the extent that the indemnification set forth herein is finally determined by any a court of competent jurisdiction to be unenforceable, each of the Seller Parties hereunder; (iiand the Company, in such event) shall make the maximum contribution to the payment and satisfaction of the Indemnified Losses as shall be permissible under applicable Laws. Notwithstanding the foregoing, the Seller Parties shall not be obligated to indemnify the Purchaser and its Affiliates for any Losses relating to a breach of any representation contained in Section 4.11 to the extent that such Losses are for Taxes payable by the Company or any Subsidiaries to any Taxing Authority (whether before or after Closing) or relate to any Tax Benefit.
(b) Notwithstanding anything in Section 10.1 (a) to the contrary, the obligations of the Seller Parties to make payments to the Indemnified Parties pursuant to Section 10.1(a) shall be allocated among the Seller Parties as follows:
(i) the G. Block Parties, shall be obligated, jointly and severally, to pay 100% of all Losses resulting to any Indemnified Party from (x) any breach of or inaccuracy in any covenant representation or agreement set forth herein warranty made by any G. Block Party in this Agreement with respect to any G. Block Party (other than a representation or warranty that is expressly limited to the knowledge or belief of the Seller Parties or the Designated Persons) or (y) any non-fulfillment of nonfulfillment or default in the performance by any obligation G. Block Party of any of Seller Parties under the covenants or agreements contained in this Agreement or that are applicable to any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller Parties.G. Block Party;
Appears in 1 contract
Samples: Purchase Agreement (Glenoit Corp)
Indemnification by Seller Parties. (a) Subject to the terms and conditions of this Article 6, the Seller Parties, jointly severally and severallynot jointly, agree to indemnify, defend, save will indemnify and hold harmless Buyer, and the Surviving Corporation, each of Buyer’s agentstheir respective Subsidiaries, employees, each of their respective Affiliates, officers, and directors their respective successors and assigns (each individually, the “Buyer IndemniteeIndemnitees”) harmless from and against any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies the entirety of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered or sustained by Adverse Consequences that any Buyer Indemnitee which may suffer or incur (including any Adverse Consequences they may suffer or incur after the end of any applicable survival period, provided that an indemnification claim with respect to such Adverse Consequence is caused bymade pursuant to this Article 6 prior to the end of any applicable survival period) resulting from, resulting from or arising out of: , relating to, in the nature of, or caused by (i) any breach or inaccuracy of any representation or warranty of any of Seller Parties contained made in Section 5 of this Agreement or in any certificate or instrument delivered by any Seller Parties hereunder; pursuant hereto, (ii) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of the Company, any of Seller Parties under its Subsidiaries or the Representative in this Agreement or in any exhibit, schedule, certificate or any other document furnished in connection herewith; and instrument delivered pursuant hereto, (iii) any Excluded Liabilities or claim, including, but not limited to, an appraisal claim, made by any Taxes of any of Seller Parties Party relating to such Person’s rights with respect to periods ending the Consideration, or the calculations and determinations set forth on the Consideration Spreadsheet, and any amounts paid to the holders of Dissenting Shares, including any interest required to be paid thereon, that are in excess of what such holders would have received hereunder had such holders not been holders of Dissenting Shares or (iv) any Adverse Consequences attributable to the failure of any Seller Party (other than any Seller) to deliver the Required Documentation.
(b) Subject to the terms and conditions of this Article 6, each Seller Party, severally and not jointly, will indemnify and hold harmless the Buyer Indemnitees from and against the entirety of any Adverse Consequences that any Buyer Indemnitee may suffer or incur (including any Adverse Consequences they may suffer or incur after the end of any applicable survival period, provided that an indemnification claim with respect to such Adverse Consequence is made pursuant to this Article 6 prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunderend of any applicable survival period) resulting from, the Buyer Indemnitee shall first proceed against any amount arising out of, relating to, in the Escrow Account. If there is an insufficient amount available nature of, or caused by (i) any breach or inaccuracy of any representation or warranty made by such Seller Party in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining this Agreement or in the Escrow Account, the Buyer Indemnitee may proceed against the any certificate or instrument delivered pursuant hereto or (ii) any breach of any covenant or agreement of such Seller PartiesParty in this Agreement or in any certificate or instrument delivered pursuant hereto.
Appears in 1 contract
Indemnification by Seller Parties. Seller PartiesSubject to the terms of Sections 9.7 and 9.10, jointly the Company (on a joint and severallyseveral basis) and Gleitsman and Xxxxxxx (each, agree to indemnify, on a several basis) shall defend, save indemnify and hold harmless Buyer, Parent, their subsidiaries and their respective officers, directors and employees and agents, and each of Buyer’s agents, employees, Affiliates, officers, and directors them (each individually, hereinafter collectively called “Buyer IndemniteeIndemnitees”) harmless from against and against in respect of any and all damagesloss, indebtednessdamage, obligationsliability, liabilitiescost and expense whether or not involving a Third-Party Claim, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, reasonable attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) amounts paid in settlement in accordance with the terms hereof (collectively, all of the foregoing being hereinafter called “Indemnified Losses”) incurred), suffered or sustained incurred by any Buyer Indemnitee which is caused byby reason of, resulting from or arising out of: :
(ia) any misrepresentation or breach of any representation or warranty of any of Seller Parties Party contained in Section 5 of this Agreement Agreement, or in any certificate certificate, schedule, instrument or document delivered to Buyer by or on behalf of a Seller Party pursuant to the provisions of this Agreement; provided, that for purposes of this Section 9.1(a), no force or effect shall be given to any “materiality” or “Material Adverse Effect” qualifiers;
(b) any breach or nonfulfillment of any covenant, agreement or other obligation of any Seller Parties hereunder; Party contained in this Agreement, or in any instrument or document delivered to Buyer by or on behalf of any Seller Party pursuant to the provisions of this Agreement;
(c) any Receivables included in the calculation of the Net Asset Value which are outstanding as of the Closing Date and which are not paid in full within 120 days after the Closing Date;
(d) any Supplier Termination Amounts as of the Closing (specifically excluding any such amounts resulting from upfront payments and reimbursements and rebates received by Buyer after the Closing Date) to the extent (i) Buyer does not have recourse for payment against a dealer/operator, and (ii) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under this Agreement or any exhibitsuch Supplier Termination Amounts do not relate to retail locations leased to, scheduleand operated by, certificate or any other document furnished Buyer in connection herewithwith the Transaction;
(e) any Proceeding initiated by a shareholder or former shareholder of the Company;
(f) any Environmental Condition; and and
(iiig) any Excluded Liabilities or any Taxes of any of Seller Parties with respect to periods ending on or prior to the Closing Date. In the event that a Buyer Indemnitee has a claim for indemnification against the Seller Parties hereunder, the Buyer Indemnitee shall first proceed against any amount in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller PartiesLiability.
Appears in 1 contract
Samples: Asset Purchase Agreement (World Fuel Services Corp)
Indemnification by Seller Parties. Subject to the other terms and conditions of this Article IX, Seller Partiesand each member of the Seller Group, jointly and severallyseverally (except to the extent of Non-Pro Rata Obligations as discussed in Section 9.04(e)), agree to indemnifyshall indemnify and defend each of Purchaser and its Affiliates (including the Company) and their respective Representatives (collectively, defend, save and hold Buyerthe “Purchaser Indemnitees”) against, and shall hold each of Buyer’s agents, employees, Affiliates, officers, and directors (each individually, “Buyer Indemnitee”) them harmless from and against against, and shall pay and reimburse each of them for, any and all damages, indebtedness, obligations, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, attorneys’ fees and other costs and expenses incident to any claim, demand, action, suit, arbitration, investigation or similar proceeding) (collectively, “Losses”) incurred, suffered Losses incurred or sustained by any Buyer Indemnitee which is caused by, resulting from or imposed upon, the Purchaser Indemnitees based upon, arising out of: , with respect to or by reason of the following:
(ia) any inaccuracy in or breach of any representation of the representations or warranty warranties of the Company or any of Seller Parties Party contained in Section 5 Article III or Article IV of this Agreement or in any certificate delivered by or on behalf of any Seller Parties hereunderParty pursuant to this Agreement;
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company at or prior to Closing or any Seller Party or Seller Representative pursuant to this Agreement;
(c) any Transaction Expenses and any Closing Debt outstanding as of the Closing to the extent that any such amounts are in excess of the amounts included in the calculation of Final Total Consideration;
(d) to the extent not paid from the R&W Insurance Policy (which Purchaser agrees to pursue with respect to any Losses covered by the R&W Insurance Policy before pursuing the Seller Parties; provided, however, that such requirement shall not limit the ability of the Purchaser to assert a claim for purposes of preserving the claim prior to the expiration of the relevant survival period while pursuing the R&W Insurance Policy), (i) any Taxes imposed on the Company or any Seller Party with respect to any Pre-Closing Tax Period; (ii) any breach of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any member of Seller Parties with respect to periods ending an affiliated, consolidated, combined or unitary group of which the Company (or any predecessor of the Company) is or was a member on or prior to the Closing Date. In , including by reason of a liability under Treasury Regulation Section 1.1502-6 or any comparable provisions of foreign, state or local Law; (iii) any and all Taxes of any Person imposed on the event that Company as a Buyer Indemnitee transferee or successor, or by contract (other than a contract the primary subject matter of which is not Taxes) as a result of transactions or events occurring on or prior to the Closing Date (other than Transfer Taxes payable by Purchaser in accordance with Section 7.01(c)); (iv) the employer portion of any payroll Taxes arising in connection with the transactions contemplated by this Agreement; and (v) up to $50,000 of the reasonable out of pocket and third party costs and expenses associated with the preparing, filing, or defending any Tax Return with respect to any Pre-Closing Tax Period (the amount payable by Seller or the Seller Group under this clause (v) not to exceed $50,000), excluding (solely for purposes of clause (v) of this Section 9.02(d)) Purchaser’s ordinary out of pocket and third party costs and expenses associated with the preparation and initial filing of Tax Returns required to be filed by the Company for any period ending on or after December 31, 2020;
(e) any dispute solely amongst the Seller Group, their Affiliates or any of the Persons comprising the same which has a claim for indemnification against not been released by the Seller Parties hereunderon or prior to Closing;
(f) the PPP Loan, including with respect to any misrepresentations or omissions in any application by the Buyer Indemnitee shall first proceed Company relating to the PPP Loan or any failure of the Company to be eligible for such PPP Loan or to comply with the applicable terms of the PPP Loan or other Laws applicable to the PPP Loan;
(g) any Fraud on the part of any Seller Party committed against any amount Purchaser in the Escrow Account. If there is an insufficient amount available in the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the connection with this Agreement (“Seller Parties.Fraud Carve-Out Event”);
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Northwest Pipe Co)
Indemnification by Seller Parties. The Seller Parties, Parties hereby agree to jointly and severally, agree to severally indemnify, defend, save defend and hold Buyerharmless Purchaser and its officers, and each of Buyer’s agentsdirectors, equity holders, employees, Affiliatesagents, officersrepresentatives, successors and assigns (each a "Purchaser Party") of, from, against, and directors in respect of or relating (each individually, “Buyer Indemnitee”directly or indirectly) harmless from and against to any and all loss, liability, claim, damages, indebtednesscost, obligationsfees and expense (including, liabilities, losses, expenses, assessments, penalties, fines, judgments, awards, settlements, costs, fees, expenses or deficiencies of any nature whatsoever and whether accrued or fixed, known or unknown, absolute or contingent, matured or un-matured, liquidated or unliquidated, determined or determinable, on or off-balance sheet, and whether arising in the past, present or future (including and without limitation, reasonable attorneys’ ' fees and other costs disbursements), of any kind and expenses incident to any claimdescription, demand, action, suit, arbitration, investigation inchoate or similar proceeding) otherwise (collectively, “"Losses”) incurred, suffered or sustained by any Buyer Indemnitee which is caused by"), resulting from (directly or arising out of: (iindirectly) any breach from, relating to or incident to:
8.1.1 The existence of any representation or warranty of and all Encumbrances against any of Seller Parties contained in Section 5 the Assets, other than the Permitted Encumbrances and other than those created by the Landlord of this Agreement or in any certificate delivered by any Seller Parties hereunder; (ii) any breach the Premises, and all other liabilities and obligations of any covenant or agreement set forth herein by any Seller Parties or any non-fulfillment of any obligation of any of Seller Parties under this Agreement or any exhibit, schedule, certificate or any other document furnished in connection herewith; and (iii) any Excluded Liabilities or any Taxes of any of the Seller Parties with respect to periods ending the Assets, the Business and/or the Center, whether known or unknown, mature or contingent, to the extent such liabilities and obligations are not included in the Assumed Liabilities to be expressly assumed by Purchaser hereunder;
8.1.2 Any misrepresentation, breach of representation or warranty, or breach or nonfulfillment of any covenant or obligation on the part of the Seller Parties made or given in or with respect to this Agreement or any of the Transaction Documents, or from any misrepresentation in or omission from any schedule hereto or other instrument furnished or to be furnished by any of the Seller Parties to Purchaser in connection with the transactions provided for in this Agreement; and
8.1.3 Any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses (including reasonable attorney, engineer, and expert witness fees) incident to any of the foregoing provisions and/or that arise from facts and circumstances arising on or after May 6, 1998 though and including the Closing Date. The Seller Parties hereby waive any and all contractual, statutory and other causes of action, at law or in equity, which the Seller Parties have or may have now or in the future against Purchaser or any Purchaser Party arising out of or in any manner connected with the foregoing, only. Without limiting the generality of the foregoing, the Seller Parties agree that they will continue to defend, at their own expense, any pending or future actions against the Seller Parties which are based on dealings prior to the Closing Date. In Date with customers, suppliers and other parties associated with the event that a Buyer Indemnitee has a claim for indemnification against Business and/or the Seller Parties hereunderCenter, except if and to the Buyer Indemnitee shall first proceed against any amount in extent the Escrow Account. If there is an insufficient amount available in same relate to and/or are otherwise included within the Escrow Account, taking into account all other claims against the Escrow and the amounts remaining in the Escrow Account, the Buyer Indemnitee may proceed against the Seller PartiesAssumed Liabilities.
Appears in 1 contract
