Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from: (i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement; (ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan; (iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so; (iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread; (v) Any breach by Seller of the Asset Purchase Agreement; and (vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above; 01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 8 contracts
Samples: Current Excess Servicing Spread Acquisition Agreement (Nationstar Mortgage Holdings Inc.), Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp), Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Agreement Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency any Owner against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency such Owner or in a shortfall of funds to pay the Current Future Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(viv) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v11.01(a)(i)-(iv) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation; provided, proceedingshowever, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to that the applicable Purchaser IndemniteeIndemnitee has taken all commercially reasonable and appropriate actions to mitigate any such losses, but may not enter into any settlement without the prior written consent damages, deficiencies, claims, causes of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment action or enter into any settlement with respect to the Third Party Claim without the prior written consent of expenses as reasonably requested by Seller, which consent shall not be unreasonably withheld. Any exercise such failure of such rights by a Purchaser Indemnitee mitigation shall not relieve Seller of its indemnification obligations and liabilities under in this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.11.01(a) but may affect
Appears in 7 contracts
Samples: Future Spread Agreement (Newcastle Investment Corp), Future Spread Agreement (Newcastle Investment Corp), Future Spread Agreement for Non Agency Mortgage Loans (Newcastle Investment Corp)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Residential Servicing Business Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v11.01(a)(i)-(v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 6 contracts
Samples: Current Excess Servicing Spread Acquisition Agreement, Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp), Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp)
Indemnification by Seller. (a) Seller shall shall, indemnify, defend defend, save and hold Purchaser, its affiliates and its any assignee of Purchaser and their respective officers, directors, managers, officers, employees, agentsagents and Affiliates (collectively, representatives and advisors (the “"Purchaser Indemnitees”") harmless from and shall reimburse against all demands, claims, allegations, assertions, actions or causes of action, assessments, losses, damages, deficiencies, liabilities, costs and expenses (including reasonable legal fees, interest, penalties, and all reasonable amounts paid in investigation, defense or settlement of any of the applicable foregoing and whether or not any such demands, claims, allegations, etc., of third parties are meritorious; collectively, "Purchaser Indemnitee for any Losses suffered Damages") asserted against, imposed upon, resulting to, required to be paid by, or incurred by any Purchaser Indemnitee after the Closing Date Indemnitees, directly or indirectly, in connection with, arising out of, which could result from:
(i) Any material in, or which would not have occurred but for, a breach of a any representation or warranty made by SellerSeller in this Agreement, in any certificate or non-fulfillment document furnished at Closing pursuant hereto by Seller or any Ancillary Agreement to which Seller is or is to become a party, a breach or nonfulfillment of any covenant or obligation of Seller, contained agreement made by any Seller in this Agreement or the Assignment Agreement;
(ii) Any servicing act in any Ancillary Agreement to which Seller is or omission is to become a party, and any and all liabilities of Seller of any prior servicer relating nature whatsoever, whether due or to any Mortgage Loan and any act become due, whether accrued, absolute, contingent or omission otherwise, existing on the Closing Date or arising out of any party related transaction entered into, or any state of facts existing, prior to the origination of Closing Date, except for any Mortgage Loan;
(iii) Any actAssumed Liability. To the extent any Purchaser Indemnitee is entitled to collect Purchaser Damages, error or omission of Seller in servicing any Purchaser shall, at its option and subject to the terms of the Mortgage LoansEscrow Agreement, including improper action or failure be entitled to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by withdraw sufficient funds from the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect Escrow Fund pursuant to the Mortgage Loans Escrow Agreement in lieu of payment directly from Seller, and to the Agency or in a shortfall of funds to pay extent the Current Excess Servicing Spread;
(v) Any breach by Seller amount due any Purchaser Indemnitee exceeds the balance of the Asset Purchase funds held under the Escrow Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject be entitled to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of collect such notice of a Third Party Claim, Seller shall have the right balance owned to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of directly from Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 5 contracts
Samples: Asset Purchase Agreement (Balanced Care Corp), Asset Purchase Agreement (Balanced Care Corp), Asset Purchase Agreement (Balanced Care Corp)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v11.01(a)(i)-(v) above;; provided, however, that the applicable Purchaser Indemnitee has taken all commercially reasonable and appropriate actions to mitigate any such losses, damages, deficiencies,
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 5 contracts
Samples: Current Excess Servicing Spread Acquisition Agreement, Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp), Current Excess Servicing Spread Acquisition Agreement (Nationstar Mortgage Holdings Inc.)
Indemnification by Seller. (a) Following the Closing, but subject to the provisions of this ARTICLE 8, Seller shall indemnify, defend and hold Purchaser, its affiliates harmless Purchaser and its and their respective directorsRepresentatives (collectively, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and against, and shall compensate and reimburse the applicable each of Purchaser Indemnitee for Indemnitees for, any and all Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date or to which result fromany Purchaser Indemnitee may otherwise become subject arising out of or related to:
(a) any inaccuracy in or breach by Seller of any of the representations or warranties made by Seller: (i) Any in this Agreement; or (ii) in any certificate delivered on behalf of Seller pursuant to Section 2.5.2(a)(ii) (in each case of the foregoing clauses (i) and (ii), without giving effect to any “material”, “in all material breach respects”, and “Material Adverse Effect” qualification limiting the scope of a such representation or warranty warranty, but solely for purposes of determining the amount of Losses and not for purposes of determining whether a breach has occurred);
(b) any failure of Seller to perform or any breach by Seller, or non-fulfillment Seller of any covenant of its covenants, agreements or obligation of Seller, obligations contained in this Agreement or the Assignment Agreement;
(iic) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage LoanExcluded Liability;
(iiid) Any act, error or omission any failure of Seller to comply with any applicable bulk sales statute in servicing connection with the Transactions contemplated hereby;
(e) any of the Mortgage Loans, including improper action or failure to act when required to do so;matters described on Section 8.3.1(e) of the Seller Disclosure Schedule (a “Designated Action”); or
(ivf) Any exercise any failure of any rights of setoff Seller to pay Transfer Taxes or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due Apportioned Obligations allocated to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by under Section 6.11.1; provided, however, that Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A required to indemnify any Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry extent that such Losses arise out of a judgment or enter into result from (i) the gross negligence, recklessness or willful misconduct of any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights Purchaser Indemnitee; or (ii) any claim for Losses that is indemnifiable by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account8.3.2.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Pernix Therapeutics Holdings, Inc.), Asset Purchase Agreement (Zogenix, Inc.), Asset Purchase Agreement (Pernix Therapeutics Holdings, Inc.)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the any Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase AgreementMSRs; and
(viv) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v10.01(a)(i)-(iii) above;; provided, however, that the applicable Purchaser Indemnitee has taken all commercially reasonable and appropriate actions to mitigate any such Losses as reasonably requested by Seller, which such failure of mitigation shall not relieve Seller of its indemnification obligations in this Section 10.01 but may affect the amount of such obligation; and further provided, that any Losses incurred by the Purchaser Indemnitee pursuant to any attempt to mitigate any such Losses shall be reimbursed by Seller as part of its indemnification obligations in this Section 10.01.
01. (b) Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee; provided, which shall not be unreasonably withheldhowever, that Seller may enter into a settlement without the prior consent of the Purchaser Indemnitee if Seller secures a full and unconditional release from any liability for the Third Party Claim in favor of the Purchaser Indemnitee. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself participate in its defense at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheldexpense. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 10.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
(c) Notwithstanding anything in Section 10.01(a) above, in the event that counsel or independent accountants for Purchaser determine that there exists a material risk that any amounts due to Purchaser under ARTICLE X hereof would be treated as Non-qualifying Income upon the payment of such amounts to Purchaser, the amount paid to Purchaser pursuant to this Agreement in any tax year shall not exceed the maximum amount that can be paid to Purchaser in such year without causing Purchaser to fail to meet the REIT Requirements for such year, determined as if the payment of such amount were Non-qualifying Income as determined by such counsel or independent accountants. If the amount payable for any tax year under the preceding sentence is less than the amount which Seller would otherwise be obligated to pay to Purchaser pursuant to ARTICLE X of this Agreement (the “Expense Amount”), then Seller shall place the Expense Amount into an escrow account (the “Expense Escrow Account”) using an escrow agent and agreement reasonably acceptable to Purchaser and shall not release any portion thereof to Purchaser, and Purchaser shall not be entitled to any such amount, unless and until Purchaser delivers to Seller, at the sole option of Purchaser, (i) an opinion (an “Expense Amount Tax Opinion”) of Purchaser’s tax counsel to the effect that such amount, if and to the extent paid, would not constitute Non-qualifying Income, (ii) a letter (an “Expense Amount Accountant’s Letter”) from Purchaser’s independent accountants indicating the maximum amount that can be paid at that time to Purchaser without causing Purchaser to fail to meet the REIT Requirements for any relevant taxable year, or (iii) a private letter ruling issued by the IRS to Purchaser indicating that the receipt of any Expense Amount hereunder will not cause Purchaser to fail to satisfy the REIT Requirements (a “REIT Qualification Ruling” and, collectively with an Expense Amount Tax Opinion and an Expense Amount Accountant’s Letter, a “Release Document”).
Appears in 4 contracts
Samples: Excess MSR Acquisition and Recapture Agreement (Cherry Hill Mortgage Investment Corp), Excess MSR Acquisition and Recapture Agreement (Cherry Hill Mortgage Investment Corp), Excess MSRS Acquisition and Recapture Agreement (Cherry Hill Mortgage Investment Corp)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency any Owner against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency such Owner or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 4 contracts
Samples: Current Excess Servicing Spread Acquisition Agreement (Nationstar Mortgage Holdings Inc.), Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp), Current Excess Servicing Spread Acquisition Agreement (Nationstar Mortgage Holdings Inc.)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold will indemnify Purchaser, its affiliates and its and their respective directors, managersofficers, employees, and agents, and any person controlling the Purchaser (within the meaning of the Securities Act) and each underwriter, if any, of the Registrable Shares and each person controlling that underwriter (within the meaning of the Securities Act), against all claims, losses, expenses, damages, liabilities and actions ("Claims") in respect of Claims (including any Claim incurred in settlement of any litigation, commenced or threatened) arising out of or based on (i) any untrue statement or alleged untrue statement of a material fact in any prospectus or any related registration statement, or any amendment or supplement thereto, or any notification or the like incident to any such registration, or any amendment or supplement thereto, or any qualification or compliance, or (ii) any omission or alleged omission to state in any such prospectus or related registration statement incident to such registration, qualification or compliance, a material fact required to be stated in it or necessary to make that statement in it not misleading in light of the circumstance in which the statement was made, or (iii) any violation by Seller of any rule or regulation promulgated under the Securities Act applicable to Seller and relating to action or inaction required of Seller in connection with any such registration, qualification or compliance; provided, however, that the indemnity agreement contained in this Section 4.7(a) will not apply (A) to amounts paid in settlement of any Claim if such settlement is effected without the consent of Seller (which consent will not be unreasonably withheld) and (B) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus or the prospectus or the prospectus as amended or supplemented, but eliminated or remedied in the prospectus or the prospectus as amended or supplemented, and will not inure to the benefit of Purchaser, its directors, officers, employees, agents, representatives and advisors or any underwriter (or to the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment benefit of any covenant person who controls Purchaser or obligation such underwriter within the meaning of Seller, contained in this Agreement or the Assignment Agreement;
(iiSecurities Act) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to from whom the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing person asserting the Claim purchased any of the Mortgage LoansRegistrable Shares, if a copy of the prospectus (as then amended or supplemented and provided to Purchaser) was not sent or given to such person through no fault of Seller at or prior to the time such action is required by the Securities Act, nor will Seller be liable in any such case for any Claim to the extent that it arises out of or is based upon (1) any untrue statement or alleged untrue statement of a material fact contained in any registration statement, including improper action any preliminary prospectus or failure final prospectus contained therein or any amendments or supplements thereto, (2) the omission or alleged omission to act when state therein a material fact required to do so;
be stated therein, or necessary to make the statements therein not misleading, or (iv3) Any exercise of any rights of setoff violation or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach alleged violation by Seller of the Asset Purchase Agreement; andSecurities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law (collectively a "Violation") which occurs in reliance upon and in conformity with written information furnished for use in connection with such registration by or on behalf of Purchaser (with respect to a Claim by Purchaser under this Section 4.7(a)) or such underwriter or controlling person (with respect to a Claim by such underwriter or controlling person under this Section 4.7(a)).
(vib) LitigationSeller will reimburse Purchaser, proceedingsits directors, governmental investigationsofficers, ordersemployees, injunctions agents, and controlling person and each such underwriter or decrees resulting from controlling person for any of legal or any other expenses reasonably incurred in connection with investigating or defending any Claim; provided, however, that the items described reimbursement provisions contained in this Section 11.01(a)(i4.7(b) – will not apply (vi) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion to amounts paid in settlement of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of Claim if such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement is effected without the prior written consent of the applicable Purchaser Indemnitee, Seller (which shall consent will not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel ) and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus or the Third Party prospectus or the prospectus as amended or supplemented, but eliminated or remedied in the prospectus or the prospectus as amended or supplemented, and will not inure to the benefit of Purchaser, its directors, officers, employees, agents, and controlling person or any underwriter (or to the benefit of any person who controls such underwriter within the meaning of the Securities Act) from whom the person asserting any Claim without purchased any of the Registrable Shares, if a copy of the prospectus (as then amended or supplemented and provided to Purchaser) was not sent or given to such person through no fault of Seller at or prior to the time such action is required by the Securities Act, nor will Seller be liable in any such case for any Claim to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written consent information furnished for use in connection with such registration by or on behalf of SellerPurchaser (with respect to a claim for reimbursement by Purchaser, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations directors, officers, employees, agents, and liabilities controlling person under this Section 11.01 4.7(b)) or any other provision of this Agreement. With such underwriter or controlling person (with respect to any Third Party Claim subject to indemnification a claim for reimbursement by such underwriter or controlling person under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountSection 4.7(b)).
Appears in 4 contracts
Samples: Option Agreement (Trident Trust Co Iom LTD), Option Agreement (Michaels Stores Inc), Option Agreement (Trident Trust Co Iom LTD)
Indemnification by Seller. (a) Subject to Section 12.01, the Seller shall indemnify, defend indemnify against and hold Purchaserharmless Buyer, its affiliates Affiliates, and its each of their successors and permitted assigns, and their respective directors, managersemployees, officers, employeesdirectors and representatives (collectively, agents, representatives and advisors (the “Purchaser IndemniteesBuyer Indemnified Parties”) harmless from, and will promptly defend any Buyer Indemnified Party from and shall reimburse the applicable Purchaser Indemnitee for any Buyer Indemnified Party for, any and all Losses suffered which such Buyer Indemnified Party may at any time suffer or incurred by any Purchaser Indemnitee after the Closing Date which incur, or become subject to, as a result fromof or in connection with:
(i) Any material The Seller’s breach of, any of a representation the representations or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, warranties contained in this Agreement or the Assignment Agreement(each such breach, a “Seller Warranty Breach”);
(ii) Any servicing act any breach or omission nonfulfillment of any prior servicer relating to any Mortgage Loan and any act agreement or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any covenant of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise Seller under the terms of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase this Agreement; and
(viiii) Litigationthe Excluded Liabilities and the Excluded Assets, proceedingsincluding any liability under any tolling agreement entered into pursuant to Section 7.01(b).
(b) Notwithstanding any other provision to the contrary, governmental investigations, orders, injunctions or decrees the Seller shall not be required to indemnify and hold harmless any Buyer Indemnified Party pursuant to Section 12.03(a): (i) unless such Buyer Indemnified Party has asserted a claim with respect to such matters within the applicable survival period set forth in Section 12.01 and (ii) only for the aggregate amount of Buyer Indemnified Parties’ Losses resulting from any Seller Warranty Breaches in excess of the items described Deductible; provided, that the cumulative indemnification obligation of Seller for Seller Warranty Breaches shall in no event exceed the Cap; provided further, that neither the Deductible nor the Cap shall apply in the case of any indemnification under clauses (ii) and (iii) of Section 11.01(a)(i12.03(a); provided further, that in the case of any indemnification under clauses (ii) – and (viii) of Section 12.03(a) that the cumulative indemnification obligation of the Seller under this Section 12.03(b) shall in no event exceed the Purchase Price received by the Seller.
(c) Notwithstanding Section 12.03(b) above;
01. Purchaser shall notify Seller promptly after receiving written notice , on and as of the assertion date that is six (6) months following the Closing Date, the Cap shall be reduced to an amount equal to (x) five percent (5%) of the Purchase Price plus (y) the amount of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to by the Buyer Indemnified Parties for indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt outstanding and unpaid as of such notice of a Third Party Claimdate, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory if any, pursuant to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel terms and to otherwise separately defend itself at its own expense but shall not consent subject to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of conditions set forth in this Agreement. With respect On the date that is twelve (12) months following the Closing, the Cap shall be reduced to the amount of any Third Party Claim subject to claims by the Buyer Indemnified Parties for indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper Agreement outstanding and adequate defense unpaid as of such Third-Party Claim. For date, if any, pursuant to the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited terms and subject to funds available the conditions set forth in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountthis Agreement.
Appears in 4 contracts
Samples: Asset Purchase Agreement (LIN Media LLC), Asset Purchase Agreement (Mercury New Holdco, Inc.), Asset Purchase Agreement (Media General Inc)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Agreement Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency any Owner against Seller that results in a decrease in Servicing Agreements Agreement termination payments due to Seller with respect to the Mortgage Loans from the Agency such Owner or in a shortfall of funds to pay the Current Future Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(viv) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v11.01(a)(i)-(iv) above;
01; provided, however, that the applicable Purchaser Indemnitee has taken all commercially reasonable and appropriate actions to mitigate any such losses, damages, deficiencies, claims, causes of action or expenses as reasonably requested by Seller, which such failure of mitigation shall not relieve Seller of its indemnification obligations in this Section 11.01(a) but may affect the amount of such obligation; and further provided, that any Losses incurred by the Purchaser Indemnitee pursuant to any attempt to mitigate any such losses, damages, deficiencies, claims, causes of action or expenses shall be reimbursed by Seller as part of its indemnification obligations in this Section 11.01(a). Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 11.01(a) or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Future Spread Custodial Account or the Current Future Spread Reserve Account.
Appears in 3 contracts
Samples: Future Spread Agreement for Fnma Mortgage Loans (Newcastle Investment Corp), Future Spread Agreement (Newcastle Investment Corp), Future Spread Agreement for Non Agency Mortgage Loans (Newcastle Investment Corp)
Indemnification by Seller. (a) The Seller shall indemnify, defend and hold Purchaser, its affiliates indemnify the Purchaser and its and their respective directors, managers, officers, employees, agents, representatives employees and advisors agents (the “Purchaser IndemniteesIndemnified Parties”) and hold them harmless from against any and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Sellerall claims, or non-fulfillment of any covenant or obligation of Sellerlosses, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any actother costs, error or omission of Seller in servicing fees and expenses that any of them may sustain by reason of (A) the Mortgage LoansSeller’s willful misfeasance, including improper action bad faith or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by negligence in the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel performance of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification duties under this Agreement, any Servicing Agreement or any Guide, (B) the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s reckless disregard of its obligations for Purchaser Indemnitees shall not be limited or duties under this Agreement, any Servicing Agreement or any Guide, (C) the Seller’s breach of its representations, warranties or covenants under this Agreement, any Servicing Agreement or any Guide, (D) Seller’s breach of a representation, warranty or covenant under, or Seller’s failure to funds available comply with any obligation under, any agreement or obligation secured by a Purchaser’s right, title or interest in the Third Party Controlled Current Primary Portfolio Excess Spread, the Secondary Portfolio Excess Spread or any other rights or interests of the Purchaser under this Agreement, or (E) the Transactions being characterized by a court or governmental authority as anything other than an absolute transfer or sale. The Seller hereby grants the Purchaser a security interest in all of its right, title and interest in, to and under, whether now existing or in the future arising or acquired, (i) all Primary Portfolio Excess Spread, all Secondary Portfolio Excess Spread and all rights under this Agreement with respect to any Primary Portfolio Excess Spread or any Secondary Portfolio Excess Spread; (ii) the Primary Portfolio Spread Custodial Account and the Secondary Portfolio Spread Custodial Account; (iii) all rights to payment of amounts due under this Agreement on account of or related to the Primary Portfolio Excess Spread or the Current Spread Reserve AccountSecondary Portfolio Excess Spread; (iv) all rights to reimbursement of Primary Portfolio Excess Spreads, Secondary Portfolio Excess Spreads and/or amounts due in respect thereof under the related Servicing Agreements and Guides; (v) all records, instruments or other documentation evidencing any of the foregoing; (vi) all “general intangibles”, “accounts”, “chattel paper”, “securities accounts”, “investment property”, “deposit accounts” and “money” as defined in the Uniform Commercial Code relating to or constituting any and all of the foregoing (including, without limitation, all of Seller’s rights, title and interest in and under the Primary Portfolio Excess Spreads and Secondary Portfolio Excess Spreads); and (vii) any and all replacements, substitutions, distributions on or proceeds of any and all of the foregoing, as security for the obligations of the Seller under this Section 8.03.
Appears in 3 contracts
Samples: Master Spread Acquisition and MSR Servicing Agreement (PennyMac Mortgage Investment Trust), Master Spread Acquisition and MSR Servicing Agreement (Pennymac Financial Services, Inc.), Master Spread Acquisition and MSR Servicing Agreement (Pennymac Financial Services, Inc.)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Sale Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency MSR Successor Proceeds or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase and Sale Agreement;
(vi) Any payments made pursuant to clause first of Section 3.04(a) hereof;
(vii) Any amounts paid to Xxxxxx Mae from the Agency Reserve Account;
(viii) Seller not maintaining a “Secured Party” under the GNMA Acknowledgment Agreement or any breach of the GNMA Acknowledgment Agreement by the “Secured Party” thereunder; and
(viix) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (vviii) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Distribution Account or the Current Spread Reserve Account.
Appears in 3 contracts
Samples: Current Excess Servicing Spread Acquisition Agreement (Nationstar Mortgage Holdings Inc.), Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp), Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp)
Indemnification by Seller. (a) After Closing, Seller shall will indemnify, defend and hold Purchaser, its affiliates harmless the LLC and its Buyer and their members and their and their respective Affiliates, and the shareholders, partners, members, directors, managers, officers, employees, agents, representatives successors and advisors (the “Purchaser Indemnitees”) harmless assigns of any of such Persons, from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result fromagainst:
11.2.1 all Losses of or to Buyer or any such other indemnified Person resulting from or arising out of (ia) Any material any breach of a any representation or warranty made by Seller, Seller in this Agreement or non-fulfillment any Transaction Document; (b) any breach of any covenant covenant, agreement or obligation of Seller, Seller or any Principal contained in this Agreement or the Assignment Agreement;
any Transaction Document; (iic) Any servicing any claim, action, suit or proceeding by any Third Party (collectively, an "ACTION") as a result of any (i) act or omission of Seller or the LLC with respect to any event or circumstance related to the ownership or operation of the System or the conduct of the Business, which act, omission, event or circumstance occurred or existed prior servicer to or at the Closing, without regard to whether a claim with respect to such matter is asserted before or after the Closing, including any matter described on SCHEDULE 5.12 or (ii) breach of any representation or warranty made by Seller in this Agreement or any Transaction Document; (d) the failure by Seller to perform any of its obligations in respect of Retained Liability; (e) any Title Defect relating to any Mortgage Loan and of the Real Property that is not deleted as an exception in, insured over by the applicable Title Policy or waived by Buyer; (f) any act claim that the transactions contemplated by this Agreement to be performed by Seller violate WARN or omission any Legal Requirement or any bulk transfer or fraudulent conveyance laws of any jurisdiction; (g) any claim relating to "continuation coverage" under Code Section 4980B or Section 601, et seq., of ERISA with respect to former employees (or their spouses or dependants) of Seller or the System at and after the Closing Time or that Buyer or the LLC is deemed to be a successor employer of such party under Code Section 4980B or Section 601, et seq., of ERISA; (h) any claim, obligation, responsibility, violation of any Legal Requirement or contractual obligation, expense or other liability related to any Seller's Plan; (i) the origination presence, generation, removal or transportation of a Hazardous Substance on or from any Real Property, including the costs of removal or clean-up of such Hazardous Substance and other compliance with the provisions of any Mortgage Loan;
Environmental Laws during Seller's ownership of such Real Property, without regard to whether a claim with respect to such matter is asserted before or after the Closing; (iiij) Any actany rate refund or credit, error or omission of Seller in servicing penalty and/or interest payment with respect thereto ordered by any of the Mortgage Loans, Governmental Authority (including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results judgments in a decrease in Servicing Agreements termination payments due to Seller private civil action) with respect to the Mortgage Loans from System for periods through and including the Agency Closing; and (k) any liability or in obligation arising out of an Excluded Asset for which Buyer or the LLC become or remain liable after Closing and for which a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreementfull adjustment was not made at Closing; and
(vi) Litigation11.2.2 all claims, actions, suits, proceedings, governmental investigationsdemands, ordersjudgments, injunctions assessments, fines, interest, penalties, costs and expenses (including settlement costs and reasonable legal, accounting, experts' and other fees, costs and expenses) incident or decrees relating to or resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountforegoing.
Appears in 3 contracts
Samples: Limited Liability Company Interest Purchase and Sale Agreement (Northland Cable Properties Eight Limited Partnership), Limited Liability Company Interest Purchase and Sale Agreement (Northland Cable Properties Seven Limited Partnership), Limited Liability Company Interest Purchase and Sale Agreement (Northland Cable Television Inc)
Indemnification by Seller. (a) Following the Closing, and subject to the limitations set forth in this Section 10, Seller shall indemnifyhereby covenants and agrees to defend, defend indemnify and save and hold Purchaserharmless Buyer, together with its affiliates and its and their respective officers, directors, managers, officers, employees, agents, stockholders, members, attorneys and representatives and advisors each Person who controls Buyer within the meaning of the Securities Act (the “Purchaser IndemniteesBuyer Indemnified Parties”), from and against any loss, cost, expense, Liability, claim or legal damages (including, without limitation, reasonable fees and disbursements of counsel and accountants and other costs and expenses incident to any actual or threatened claim, suit, action or proceeding (each, an “Action”) harmless from and shall reimburse all costs of investigation) (collectively, the applicable Purchaser Indemnitee for any Losses suffered “Damages”) arising out of or incurred by any Purchaser Indemnitee after the Closing Date which result resulting from:
: (i) Any material any inaccuracy in or breach of a representation or warranty by Sellerany representation, or non-fulfillment of any warranty, covenant or obligation of Seller, contained agreement made by Seller in this Agreement or in any certificate, schedule or exhibit delivered by Seller pursuant to this Agreement or at the Assignment Agreement;
Closing; (ii) Any servicing act the failure of Seller to perform or omission of observe fully any prior servicer relating covenant, agreement or provision required to any Mortgage Loan and any act be performed or omission of any party related observed by it pursuant to the origination of any Mortgage Loan;
this Agreement; (iii) Any act, error all Excluded Liabilities; or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise any claims of third parties claiming compensation, commissions or expenses for services as a broker or finder based upon obligations incurred by Seller or any of its officers, employees or representatives.
(b) In the event that any Buyer Indemnified Party is made a defendant in or party to any action, suit, proceeding or claim, judicial or administrative, instituted by any third party for Damages (any such third party action, suit, proceeding or claim being referred to as a “Claim”), the Buyer Indemnified Party (referred to in this clause (c) as the “notifying party”) shall give notice thereof as soon as practicable and in any event within thirty (30) days after the Buyer Indemnified Party receives notice thereof. The failure to give such notice shall not affect whether an indemnifying party is liable for reimbursement hereunder unless such failure has resulted in the loss of material substantive rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from indemnifying party’s ability to defend such Claim or is otherwise materially prejudicial. The indemnifying party may contest and defend such Claim so long as the Agency or indemnifying party: (i) has a reasonable basis for concluding that such defense may be diligently conducted, (ii) diligently contests and defends such Claim, and (iii) acknowledges in a shortfall of funds writing that it is obligated to pay provide indemnification with respect to such Claim, subject to the Current Excess Servicing Spread;
(v) Any breach by Seller limitations set forth herein. Notice of the Asset Purchase Agreement; and
intention to so contest and defend shall be given by the indemnifying party to the notifying party within twenty (vi20) Litigationdays after the notifying party’s notice of such Claim. Such contest and defense shall be conducted by reputable attorneys employed by the indemnifying party and approved by the indemnified party (which approval will not be unreasonably conditioned, proceedingsdelayed or withheld). The notifying party shall be entitled, governmental investigationsat its own cost and expense (which expense shall not constitute Damages unless the notifying party reasonably determines that the indemnifying party is not adequately representing or, ordersbecause of a conflict of interest, injunctions or decrees resulting from any may not adequately represent, the interests of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written indemnified parties, and has provided the indemnifying party with notice of such determination, and only to the assertion extent that such expenses are reasonable), to participate in such contest and defense and to be represented by attorneys of its or their own choosing. If the notifying party elects to participate in such defense, the notifying party will cooperate with the indemnifying party in the conduct of such defense. Neither the notifying party nor the indemnifying party may concede, settle or compromise any litigationClaim without the consent of the other party, proceedingswhich consent will not be unreasonably withheld, governmental investigationsdelayed or conditioned in light of all factors of importance to such party. Notwithstanding the foregoing, orders, injunctions, decrees or any third if the indemnifying party claims fails to acknowledge in writing its obligation to provide indemnification in respect of such Claim (subject to indemnification under this Agreement (eachthe limitations set forth herein), a “Third Party Claim”). Upon receipt of to assume the defense thereof with counsel reasonably satisfactory to the notifying party or to diligently contest and defend such notice of a Third Party Claim, Seller then the notifying party alone shall be entitled to contest, defend and settle such Claim in the first instance (in which case, all expenses incurred in connection therewith shall constitute Damages) and, only if the notifying party chooses not to contest, defend or settle such Claim, the indemnifying party shall then have the right to assume the defense of contest and defend (but not settle) such Third Party Claim using counsel of its choice reasonably satisfactory Claim.
(c) Notwithstanding anything herein to the applicable Purchaser Indemniteecontrary, but may not enter into any settlement without (i) except in the prior written consent case of a Fraudulent Breach or the applicable Purchaser Indemniteebreach or inaccuracy of a Fundamental Representation, which from and after the Closing Date, Seller shall not be unreasonably withheld. A Purchaser Indemnitee shall have obligated to indemnify the right Buyer Indemnified Parties pursuant to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to this Section 10.2 for any indemnification claim that is made after the entry of a judgment or enter into any settlement General Expiration Date, provided however, with respect to Claims, Actions or claims for Damages made prior to the Third Party Claim without General Expiration Date, but not resolved by the prior written consent General Expiration Date, the obligations of SellerSeller to indemnify the Buyer Indemnified Parties pursuant to this Section 10.2 for any such indemnification claims shall survive until resolution of such claims, which consent and (ii) in the case of a Fraudulent Breach or the breach or inaccuracy of a Fundamental Representation, from and after the Closing Date, Seller shall not be unreasonably withheld. Any exercise obligated to indemnify the Buyer Indemnified Parties pursuant to this Section 10.2 for any indemnification claim that is made after the Applicable Extended Expiration Date with respect to a Fraudulent Breach or the breach or inaccuracy of a Fundamental Representation, provided however, with respect to Claims, Actions or claims for Damages made prior to the Applicable Extended Expiration Date with respect to a Fraudulent Breach or the breach or inaccuracy of a Fundamental Representation, but not resolved by the Applicable Extended Expiration Date, the obligations of Seller to indemnify the Buyer Indemnified Parties pursuant to this Section 10.2 for any such indemnification claims shall survive until resolution of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountclaims.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Cafepress Inc.), Asset Purchase Agreement (Cafepress Inc.)
Indemnification by Seller. (a) VSD shall defend, indemnify and hold harmless Purchaser, its respective members, the Affiliates of each, and its and their respective officers, directors, employees and agents (“Purchaser Indemnified Parties”) from and against (i) any Losses (other than Tax Losses), to the extent arising out of or in connection with (A) the negligence, fraud or willful misconduct of Sellers, their Affiliates or their subcontractors or (B) any breach by Sellers of any of their representations, warranties or covenants in this Agreement or the other Transaction Documents and (ii) any Losses (other than Tax Losses) from third party claims or demands arising under or relating to any Seller’s performance or nonperformance under this Agreement; provided, however, in no event will any Seller shall be responsible for any such Losses to the extent caused by Purchaser’s gross negligence or willful misconduct.
(b) From and after the applicable Purchase Date, VSD will indemnify, defend and hold Purchaserharmless Purchaser Indemnified Parties from any claims or liens (other than Permitted Liens) brought or filed in connection with the Projects that were purchased from the Sellers. VSD will discharge any such claim or lien within thirty (30) days after becoming aware of such claim or lien. Failure to so discharge shall entitle the Purchaser to pay such claim or lien and seek reimbursement from VSD for such discharged claim or lien, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (or to set off the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:amounts owed to VSD hereunder ***.
(ic) Any material If as a result of the breach or inaccuracy of a any representation or warranty by Seller, set forth herein or non-fulfillment the breach of any covenant or obligation of Sellerherein any Purchaser Indemnified Party for U.S. federal income tax purposes shall lose the benefit of, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall not have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemniteeclaim, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemniteeshall suffer a disallowance or deferral of, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of suffer a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Sellerdelay in claiming, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate recapture or shall not claim (as the result of a Final Determination or a written opinion of independent counsel selected by Purchaser and reasonably acceptable to a Seller that there is not at least a “more likely than not” position for such claim) all or any portion of the Tax Credits (a “Tax Credit Loss”) or cost recovery (depreciation) deductions (a “Deduction Loss” and, together with a Tax Credit Loss, a “Tax Loss”) assumed in good faith with Seller the Base Case Model, then VSD shall pay to ensure Purchaser the proper and adequate defense amount determined pursuant to Section 4.3(d) hereof.
(1) If a Tax Loss as defined in Section 4.3(c) hereof shall occur, then VSD shall pay to Purchaser (i) in the case of a Tax Credit Loss, the amount, if any, of the Tax Credit lost, disallowed or recaptured reduced by any Tax Savings arising as a result of the Tax Credit Loss, (ii) in the case of a Deduction Loss, the amount, if any, by which the sum of the present values as of the date of the indemnity payment of the additional U.S. federal income taxes payable by each Purchaser Indemnified Party as a result of such Third-Party ClaimDeduction Loss (computed using a discount rate of 15%) exceeds any Tax Savings arising as a result of the Deduction Loss, (iii) the amount of any U.S. federal interest, penalties, fines or additions to tax payable by each Purchaser Indemnified Party, and (iv) the net amount of any additional U.S. federal income Taxes payable by each Purchaser Indemnified Party, if any, as the result of (A) the inclusion of any payment made pursuant to this Section 4.3(d) in taxable income or (B) the increase in any Tax Loss as a result of any payment made pursuant to this Section 4.3. For As used herein, “Tax Savings” shall mean the avoidance sum of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available the present values as of the date of the indemnity payment of the reductions in the Third U.S. federal income taxes payable by each Purchaser Indemnified Party Controlled Current Spread Custodial Account as a result of the Tax Credit Loss or Deduction Loss, as the Current Spread Reserve Accountcase may be (computed using a discount rate of 15%). *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission.
Appears in 3 contracts
Samples: Development, Epc and Purchase Agreement (Vivint Solar, Inc.), Development, Epc and Purchase Agreement (Vivint Solar, Inc.), Development, Epc and Purchase Agreement (Vivint Solar, Inc.)
Indemnification by Seller. (a) Seller shall indemnify, defend indemnify and hold Purchaserharmless Juice Plus+, its affiliates Master Distributors, and its and Affiliates, as well as each of their respective officers, directors, managers, officers, employeesshareholders, agents, representatives and advisors employees, from and against all loss, liability, damages, claims for damages, settlements, judgments or executions, including costs, expenses (including, without limitation, commissions paid and payable) and reasonable attorneys’ fees and costs (collectively, “Losses”) incurred by Juice Plus+ and/or such persons or entities as a result of any Third Party demands, actions, suits, prosecutions or other such claims arising on and after the Effective Date (“Juice Plus+ Claims”) based on: (i) any injury to or death of any person, or damage to property caused in any way by or resulting from an alleged breach of Seller’s representations and warranties contained herein; (ii) any claims that a Product or its method of manufacture infringes any patent, copyright, trade xxxx right, trade secret, mask work right or other proprietary right of any Third Party, unless such claim is attributable to Seller’s incorporation of the Standards, formulations, specifications or materials provided by Juice Plus+ for the Products; (iii) Seller’s inability or failure to maintain the quality control levels specified pursuant to this Agreement or (iv) any recall of Products provided by Seller under this Agreement is ordered by a court of competent jurisdiction or governmental agency due to Seller’s failure to comply with this Agreement. In addition, notwithstanding any other provision to the contrary herein, during any period of time in which Seller is unable or fails to Produce the Products in sufficient volume as required by this Agreement, Juice Plus+ may, in addition to any other rights it has pursuant to the terms of this Agreement, have sufficient Products manufactured and delivered by a Third Party manufacturer (the “Purchaser IndemniteesReplacement Products”) in accordance with the same Standards to the extent required to fulfill Juice Plus+’s requirements for the Products that Seller is unable or fails to produce and deliver, and Seller shall indemnify and hold harmless from Juice Plus+ and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered its Affiliates against all costs or expenses incurred by any Purchaser Indemnitee after the Closing Date which Juice Plus+ and/or its Affiliates as a result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller’s inability or failure to Produce Products in sufficient volume as required by this Agreement, contained including, but not limited to, the extent to which the purchase prices paid by Juice Plus+ and/or its Affiliates for Replacement Products exceeds the price Seller would be paid for the same Products pursuant to this Agreement (the “Product Replacement Costs”). Notwithstanding the above, Seller shall not be required to indemnify or hold harmless Juice Plus+ or its Affiliates in the event Seller’s inability or failure to Produce Products in sufficient volume is due to any failure to perform by any Approved Contractor which is mandated by Juice Plus+. In addition to any rights now or hereafter granted pursuant to this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission under applicable Law and not by way of limitation of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any actsuch rights, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller Juice Plus+ shall have the right right, at any time or from time to assume time upon the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to occurrence and during the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry continuance of a judgment Juice Plus+ Claim or enter into any settlement other event for which Seller has an obligation to indemnify Juice Plus+ that has not been satisfied by Seller to, with respect ten (10) days prior notice to the Third Party Claim without the prior written consent of Seller, which consent shall set off and apply against all payments due from Juice Plus+ to Seller the amount of all Losses and/or Product Replacement Costs Seller is obligated to indemnify Juice Plus+ for and that Seller has not be unreasonably withheld. Any exercise of satisfied such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect obligation to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountJuice Plus+.
Appears in 3 contracts
Samples: Exclusive Manufacturing Agreement, Exclusive Manufacturing Agreement (Natural Alternatives International Inc), Exclusive Manufacturing Agreement (Natural Alternatives International Inc)
Indemnification by Seller. (a) Seller shall indemnify, defend hold harmless and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (indemnify the “Purchaser Indemnitees”) harmless Indemnitees from and against, and shall compensate and reimburse each of the applicable Purchaser Indemnitee for Indemnitees for, any Losses Damages that are suffered or incurred by any of the Purchaser Indemnitee after Indemnitees or to which any of the Closing Date which Purchaser Indemnitees may otherwise become subject at any time to the extent such Damages arise from or result fromfrom any Proceeding commenced or threatened to be commenced by any Third Person (a “Third Person Claim”) arising from any of the following:
(i) Any any material breach Breach by Seller of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, Seller contained in this Agreement or any certificates or other documents delivered pursuant to this Agreement or the Assignment material Breach by Seller of any covenant, condition, agreement, or obligation of Seller contained in this Agreement or any certificates, notices or other documents delivered pursuant to this Agreement;
(ii) Any servicing act any product liability claims or omission claims of infringement or misappropriation of any prior servicer relating to any Mortgage Loan and any act or omission intellectual property rights of any party related Third Persons with respect to Products arising out of Purchaser’s purchase of the origination of any Mortgage LoanPurchased Receivables or other transactions contemplated by this Agreement;
(iii) Any actthe negligence, error recklessness, or omission intentional wrongful acts or omissions related to this Agreement of Seller in servicing or its Affiliates or any of the Mortgage Loanstheir respective directors, including improper action employees or failure to act when required to do soagents;
(iv) Any exercise any Proceeding initiated against Purchaser by a Third Person based on a material Breach by Seller of any rights of setoff the Material Licenses or other netting arrangements by the Agency against material agreements between Seller that results in a decrease in Servicing Agreements termination payments due and Third Persons relating to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing SpreadProducts;
(v) Any breach by any Seller Event of the Asset Purchase Agreement; andDefault;
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described assignment by Seller as provided in Section 11.01(a)(i8.3(b)(iii); or
(vii) – (v) above;
01. any Proceeding initiated against Purchaser shall notify Seller promptly after receiving written notice of the assertion by a Third Person based on Seller’s Breach or alleged Breach of any litigationrepresentation, proceedingswarranty, governmental investigationscovenant, orderscondition, injunctions, decrees agreement or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification obligation under this Agreement, the applicable Purchaser Indemnitee shall be required Xxxx of Sale or any certificates, notices or financing statements delivered pursuant to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account this Agreement or the Current Spread Reserve AccountXxxx of Sale or any matter of a type referred to in subsections (i) through (vi).
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Galera Therapeutics, Inc.), Purchase and Sale Agreement (Galera Therapeutics, Inc.), Purchase and Sale Agreement
Indemnification by Seller. (a) Seller shall indemnify, defend indemnify and hold Purchaser, its affiliates and its harmless Purchaser and their respective directorsmembers, managers, officers, employees, agentsand other agents (collectively, representatives and advisors (the “Purchaser Indemnitees”) harmless in respect of any and all damages (including diminution in value), losses, Liabilities, payments, obligations, penalties, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses (including, reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors and of expert witnesses and costs of investigation and preparation not related to or arising from and shall reimburse the applicable Purchaser Indemnitee for Assumed Liabilities) of any Losses suffered kind or nature whatsoever (collectively, “Damages”) asserted against or incurred by any Purchaser Indemnitee after as a result of, in connection with or arising out of:
(a) Any breach or nonperformance (partial or total) of or inaccuracy in any representation, warranty, covenant or agreement of Seller or 1245 Properties contained herein, in the Seller Disclosure Schedule or in any Ancillary Agreement;
(b) 100% of the amount of any Gift Cards issued by Seller prior to the Closing Date and presented to Purchaser for redemption during the Gift Card Liability Period;
(c) The Retained Liabilities;
(d) Any Liability or obligation (other than the Assumed Liabilities) resulting from, arising out of or in connection with the Business as conducted or the ownership or the operation of the Acquired Assets on or prior to the Closing Date;
(e) Any losses or costs of defending against any claims which result from:may be made against any Purchaser Indemnitee by any Person claiming violations by Seller of any local, state or federal laws relating to the employment by Seller of any employee of Seller including, but not limited to, wages, hours, concerted activity, nondiscrimination, occupational health and safety and the payment and withholding of Taxes of any kind or nature (except to the extent that Purchaser has assumed a Tax obligation pursuant to Section 6.1(e)), where such claims arise out of events, facts or circumstances occurring prior to the Closing Date;
(f) Any Liabilities that may arise from or relate to any obligations of Seller to be responsible under the Real Property Leases on or prior to the Closing Date;
(g) Any actual or threatened violation of or non-compliance with, or remedial obligation arising under, any Environmental, Health and Safety Law arising from any event, circumstance, activity, practice, incident, or action occurring prior to the Closing Date and relating in any way to the Acquired Assets or the Business;
(h) The failure to comply with any Bulk Sales Law in connection the transactions contemplated by this Agreement;
(i) Any material breach of legal action or proceeding threatened or commenced by a representation Person owning or warranty holding (directly or indirectly) a membership or other ownership interest in Seller relating to the transactions contemplated by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;; or
(iij) Any servicing act Liabilities that may arise from or omission of any prior servicer relating relate to any Mortgage Loan and any act Seller’s or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or Seller’s ERISA Affiliate’s failure to act when required maintain a Health Plan after the Closing Date and provide continuation health coverage pursuant to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations COBRA for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountall M&A Qualified Beneficiaries.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Ruths Chris Steak House, Inc.), Asset Purchase Agreement (Ruths Hospitality Group, Inc.)
Indemnification by Seller. (a) Seller hereby agrees that from and after the Closing it shall indemnify, defend and hold Purchaserharmless Buyer, its affiliates and its Affiliates, and their respective directors, managers, officers, employeesshareholders, partners, members, attorneys, accountants, agents, representatives and advisors employees (other than the Transferred Employees) and their heirs, successors and permitted assigns, each in their capacity as such (the “Purchaser IndemniteesBuyer Indemnified Parties” and, together with the Seller Indemnified Parties, the “Indemnified Parties”) harmless from, against and in respect of any damages, losses, charges, Liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties, and costs and expenses (including removal costs, remediation costs, closure costs, fines, penalties and expenses of investigation and ongoing monitoring, reasonable attorneys’ fees, and reasonable out of pocket disbursements) (collectively, “Losses”) imposed on, sustained, incurred or suffered by, or asserted against, any of the Buyer Indemnified Parties, whether in respect of third party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from (i) subject to Section 7.2(b), any breach of any representation or warranty made by Seller contained in this Agreement for the period such representation or warranty survives, (ii) any breach of any covenant or agreement of Seller contained in this Agreement and (iii) any Excluded Asset or Excluded Liability.
(b) Seller shall reimburse not be liable to the applicable Purchaser Indemnitee Buyer Indemnified Parties for any Losses suffered or incurred by any Purchaser Indemnitee after with respect to the Closing Date which result from:matters contained in Section 7.2(a)(i):
(i) Any material breach until any such Losses in respect of a representation or warranty by Sellerthe Group 1 Business exceed an aggregate amount equal to the Group 1 Threshold Amount, or non-fulfillment and then for all such Losses in excess of any covenant or obligation of Seller$42,000,000, contained in this Agreement or up to an aggregate amount not to exceed the Assignment Agreement;Group 1 Cap Amount; provided, however, that the limitations herein regarding the Group 1 Threshold Amount shall not apply to the Class 1 Representations and Warranties; and
(ii) Any servicing act or omission until any such Losses in respect of any prior servicer relating to any Mortgage Loan and any act or omission of any party related the Group 2 Business exceed an aggregate amount equal to the origination Group 2 Threshold Amount, and then for all such Losses in excess of any Mortgage Loan;$38,000,000, up to an aggregate amount not to exceed the Group 2 Cap Amount; provided, however, that the limitations herein regarding the Group 2 Threshold Amount shall not apply to the Class 1 Representations and Warranties.
(iiic) Any actSubject to Section 7.8, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure Buyer Indemnified Parties shall be entitled to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by receive payment only from the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller Escrow Account with respect to any Liability of Seller for any Losses under Section 7.2(a) and, with respect to each Specified Business, only up to an aggregate amount not to exceed the Mortgage Loans from Cap Amount applicable to such Specified Business. Notwithstanding anything to the Agency or contrary in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase this Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall not be liable for any Losses that (i) are reflected in the Closing Net Liabilities Amount used in calculating the Final Adjustment Amount to the extent and only to the extent so reflected or (ii) have been actually discharged (or the right to assume the defense of such Third Party Claim using counsel functional equivalent thereof in terms of its choice reasonably satisfactory effect on Buyer, each Specified Business, the Transferred Assets and the Assumed Liabilities) pursuant to the applicable Purchaser IndemniteeDischarge (or, but may not enter into any settlement without as applicable, the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent MCE Discharge or an Additional Discharge) to the entry of a judgment or enter into any settlement with respect extent and only to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of extent so discharged (or such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountfunctional equivalent).
Appears in 3 contracts
Samples: Asset Purchase Agreement (Time Warner Inc), Asset Purchase Agreement (Adelphia Communications Corp), Asset Purchase Agreement (Adelphia Communications Corp)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency any Owner against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency such Owner or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Residential Servicing Business Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 3 contracts
Samples: Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp), Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp), Current Excess Servicing Spread Acquisition Agreement (Nationstar Mortgage LLC)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the any Trade Confirmation or Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the an Applicable Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the that Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase AgreementMSRs; and
(viv) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v10.01-(iv) above;; provided, however, that the applicable Purchaser Indemnitee has taken all commercially reasonable and appropriate actions to mitigate any such Losses as reasonably requested by Seller, which such failure of mitigation shall not relieve Seller of its indemnification obligations in this Section 10.01 but may affect the amount of such obligation; and further provided, that any Losses incurred by the Purchaser Indemnitee pursuant to any attempt to mitigate any such Losses shall be reimbursed by Seller as part of its indemnification obligations in this Section 10.01.
01. (b) Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee; provided, which shall not be unreasonably withheldhowever, that Seller may enter into a settlement without the prior consent of the Purchaser Indemnitee if Seller secures a full and unconditional release from any liability for the Third Party Claim in favor of the Purchaser Indemnitee. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself participate in its defense at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheldexpense. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 10.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
(c) Notwithstanding anything in Section 10.01(a) above, in the event that counsel or independent accountants for Purchaser determine that there exists a material risk that any amounts due to Purchaser under ARTICLE X hereof would be treated as Non-qualifying Income upon the payment of such amounts to Purchaser, the amount paid to Purchaser pursuant to this Agreement in any tax year shall not exceed the maximum amount that can be paid to Purchaser in such year without causing Purchaser to fail to meet the REIT Requirements for such year, determined as if the payment of such amount were Non-qualifying Income as determined by such counsel or independent accountants. If the amount payable for any tax year under the preceding sentence is less than the amount which Seller would otherwise be obligated to pay to Purchaser pursuant to ARTICLE X of this Agreement (the “Expense Amount”), then:
(1) Seller shall place the Expense Amount into an escrow account (the “Expense Escrow Account”) using an escrow agent and agreement reasonably acceptable to Purchaser and shall not release any portion thereof to Purchaser, and Purchaser shall not be entitled to any such amount, unless and until Purchaser delivers to Seller, at the sole option of Purchaser, (i) an opinion (an “Expense Amount Tax Opinion”) of Purchaser’s tax counsel to the effect that such amount, if and to the extent paid, would not constitute Non-qualifying Income, (ii) a letter (an “Expense Amount Accountant’s Letter”) from Purchaser’s independent accountants indicating the maximum amount that can be paid at that time to Purchaser without causing Purchaser to fail to meet the REIT Requirements for any relevant taxable year, or (iii) a private letter ruling issued by the IRS to Purchaser indicating that the receipt of any Expense Amount hereunder will not cause Purchaser to fail to satisfy the REIT Requirements (a “REIT Qualification Ruling” and, collectively with an Expense Amount Tax Opinion and an Expense Amount Accountant’s Letter, a “Release Document”).
Appears in 3 contracts
Samples: Flow and Bulk Purchase Agreement, Flow and Bulk Excess MSR Purchase Agreement (Cherry Hill Mortgage Investment Corp), Flow and Bulk Purchase Agreement (Cherry Hill Mortgage Investment Corp)
Indemnification by Seller. (a) Subject to the limitations set forth in Section 13.3, from and after the Closing, Seller shall and the Selling Members, jointly and severally, agree to indemnify, defend and hold harmless each of the Purchaser, its affiliates Parent and its and any of their respective directors, managersmembers, officers, directors, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered affiliates, successors or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement assigns (each, a “Third "Purchaser Party") from any loss, damage or expense (including reasonable attorneys' fees) which a Purchaser Party Claim”)may incur, suffer or become liable for as a result of or in connection with (a) the breach of any representation or warranty of Seller or the Selling Members contained in this Agreement; (b) the breach of any agreement of Seller or the Selling Members contained in this Agreement; or (c) any assertion against a Purchaser Party of any claim or Liability relating to an Excluded Liability including, without limitation, the assertion against a Purchaser Party by any Person or Governmental Body of any obligation or Liability relating to the operation of the Purchased Assets or the conduct of the business of the Selling Members prior to the Effective Date including, without limitation, tax claims or liabilities. Upon receipt Purchaser, acting on behalf of a Purchaser Party, shall give Seller and the Selling Members prompt written notice of any claim, suit or demand which Purchaser believes will give rise to indemnification by Seller or the Selling Members under this section; provided, however, that, the failure to give such notice shall not affect the obligations of Seller or the Selling Members hereunder, unless such failure adversely affects any rights, remedies or privileges that would have been available to Seller or a Third Selling Member. Except as hereinafter provided and except where a conflict of interest between Seller and/or the Selling Members and the Purchaser Party Claimsuggests separate counsel is appropriate, Seller and/or the Selling Members shall have the right to defend and to direct the defense against any such claim, suit or demand, in its name or in the name of the Purchaser Party at Seller's and/or the Selling Members' expense and with outside counsel of Seller's and/or the Selling Members' own choosing. Each Purchaser Party shall, at Seller's and/or the Selling Members' expense, cooperate reasonably in the defense of any such claim, suit or demand. If Seller and/or the Selling Members, within reasonable time after notice of a claim, fails to defend a Purchaser Party, the Purchaser Party shall be entitled to undertake the defense, compromise or settlement of such claim at the expense of and for the account and risk of Seller and/or the Selling Members subject to the right of Seller and/or the Selling Members to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory claim at any time prior to the applicable settlement, compromise or final determination thereof if the only issues remaining therein involve Liability for, or the amount of, money damages to be assessed against the Purchaser IndemniteeParty, but may not enter into any settlement provided neither Seller nor the Selling Members will, without the prior Purchaser Party's written consent of the applicable Purchaser Indemniteeconsent, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not settle or compromise any claim or consent to the any entry of a judgment which does not include as an unconditional term thereof the giving by the claimant or enter into any settlement with respect the plaintiff to the Third Purchaser Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise a release from all Liability in respect of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountclaim.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Lecg Corp), Asset Purchase Agreement (Lecg Corp)
Indemnification by Seller. (a) The Seller shall indemnify, defend and hold Purchaser, its affiliates indemnify the Purchaser and its and their respective directors, managers, officers, employees, agents, representatives employees and advisors agents (the “Purchaser IndemniteesIndemnified Parties”) and hold them harmless from against any and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Sellerall claims, or non-fulfillment of any covenant or obligation of Sellerlosses, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any actother costs, error or omission of Seller in servicing fees and expenses that any of them may sustain by reason of (A) the Mortgage LoansSeller’s willful misfeasance, including improper action bad faith or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by negligence in the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel performance of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification duties under this Agreement, any Servicing Agreement or any Guide, (B) the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s reckless disregard of its obligations for Purchaser Indemnitees shall not be limited or duties under this Agreement, any Servicing Agreement or any Guide, (C) the Seller’s breach of its representations, warranties or covenants under this Agreement, any Servicing Agreement or any Guide, (D) Seller's breach of a representation, warranty or covenant under, or Seller's failure to funds available comply with any obligation under, any agreement or obligation secured by a Purchaser's right, title or interest in the Third Party Controlled Current Primary Portfolio Excess Spread, the Secondary Portfolio Excess Spread or any other rights or interests of the Purchaser under this Agreement, or (E) the Transactions being characterized by a court or governmental authority as anything other than an absolute transfer or sale. The Seller hereby grants the Purchaser a security interest in all of its right, title and interest in, to and under, whether now existing or in the future arising or acquired, (i) all Primary Portfolio Excess Spread, all Secondary Portfolio Excess Spread and all rights under this Agreement with respect to any Primary Portfolio Excess Spread or any Secondary Portfolio Excess Spread; (ii) the Primary Portfolio Spread Custodial Account and the Secondary Portfolio Spread Custodial Account; (iii) all rights to payment of amounts due under this Agreement on account of or related to the Primary Portfolio Excess Spread or the Current Spread Reserve AccountSecondary Portfolio Excess Spread; (iv) all rights to reimbursement of Primary Portfolio Excess Spreads, Secondary Portfolio Excess Spreads and/or amounts due in respect thereof under the related Servicing Agreements and Guides; (v) all records, instruments or other documentation evidencing any of the foregoing; (vi) all "general intangibles", "accounts", "chattel paper", "securities accounts", "investment property", "deposit accounts" and "money" as defined in the Uniform Commercial Code relating to or constituting any and all of the foregoing (including, without limitation, all of Seller's rights, title and interest in and under the Primary Portfolio Excess Spreads and Secondary Portfolio Excess Spreads); and (vii) any and all replacements, substitutions, distributions on or proceeds of any and all of the foregoing, as security for the obligations of the Seller under this Section 8.03.
Appears in 3 contracts
Samples: Master Spread Acquisition and MSR Servicing Agreement, Master Spread Acquisition and MSR Servicing Agreement (PennyMac Mortgage Investment Trust), Master Spread Acquisition and MSR Servicing Agreement (Pennymac Financial Services, Inc.)
Indemnification by Seller. (a) Seller shall indemnify, indemnify and defend and hold PurchaserBuyer, its affiliates Affiliates (including the Company and its Subsidiaries after the Closing) and equityholders, and each of their respective equityholders, officers, directors, members, managers, officers, employees, agents, representatives and advisors representatives, and each of their respective successors and assigns (collectively, the “Purchaser IndemniteesBuyer Parties” and individually a “Buyer Party”) and save and hold each of them harmless from against any and shall reimburse the applicable Purchaser Indemnitee for all Losses which any Losses suffered such Buyer Party may suffer, sustain or incurred become subject to, as a result of, in connection with, relating or incidental to or by any Purchaser Indemnitee after the Closing Date which result fromvirtue of:
(i) Any material any breach or non-fulfillment by Seller or the Company of a any representation or warranty made by SellerSeller in this Agreement or any of the Schedules or Exhibits attached hereto; provided, that the determination of the amount of Losses arising from the breach of any representation or warranty shall be made without regard to, and without giving effect to, any Materiality Exceptions contained in such representation or warranty (as if such word or clause, as applicable, were deleted from such representation and warranty);
(ii) any breach or non-fulfillment of any covenant covenant, agreement, obligation or obligation of Seller, contained in other provision by Seller or the Company under this Agreement or any of the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan Schedules and any act or omission of any party related to the origination of any Mortgage LoanExhibits attached hereto;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do soIndemnified Taxes;
(iv) Any exercise any Indebtedness of the Company, guarantees made directly by Seller or the Company on behalf of any rights third party in respect of setoff or other netting arrangements by Indebtedness of the Agency against Seller that results Company, and Transaction Expenses, in a decrease in Servicing Agreements termination payments due to Seller with respect to each case outstanding as of the Mortgage Loans from Closing, but excluding for these purposes the Agency or in a shortfall of funds to pay the Current Excess Servicing SpreadAssumed Indebtedness;
(v) Any breach by Seller Seller’s ownership of the Asset Purchase AgreementShares;
(vi) Those Liabilities listed on the attached Schedule 4.2(a); and
(vivii) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any the operations of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of Company or the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory Business prior to the applicable Purchaser Indemnitee, Closing Date (but may not enter into any settlement without excluding for these purposes the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party ClaimAssumed Indebtedness). For the avoidance of doubt, Sellerno Seller shall have any right of indemnification, contribution or subrogation against or from the Buyer, the Company, its Subsidiaries, any of their respective successors with respect to any indemnification made by or on behalf of Seller for any indemnification obligations arising out of a breach of any representation, warranty, covenant or agreement made by Seller on behalf of the Company. Notwithstanding anything to the contrary in this Section 4.2 or otherwise, neither the forgoing nor anything else in this Agreement shall impact Buyer and Company’s obligations for Purchaser Indemnitees shall not be limited obligation to funds available repay in full all amounts due and owing under the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountAssumed Indebtedness owing to Puritan Partners LLC as defined in Schedule 1.1(a).
Appears in 2 contracts
Samples: Stock Purchase and Sale Agreement (Banner Energy Services Corp.), Stock Purchase and Sale Agreement (Ecoark Holdings, Inc.)
Indemnification by Seller. (a)
9.1.1 Seller shall indemnify, indemnify and defend and hold Purchaser, its affiliates PGE and its Affiliates and their respective directorsstockholders, members, managers, officers, directors, employees, agents, representatives successors and advisors assigns (the each, a “Purchaser IndemniteesPGE Indemnified Party”) harmless from against, and shall reimburse the applicable Purchaser Indemnitee for hold them harmless from, any Losses suffered and all losses, damages, claims (including third-party claims), charges, interest, penalties, Taxes, costs and expenses (including legal, consultant, accounting and other professional fees, costs of sampling, testing, investigation, removal, treatment and remediation of contamination and fees and costs incurred in enforcing rights under this Section 9.3) (collectively, “Losses”) resulting from, arising out of, or incurred by any Purchaser Indemnitee after the Closing Date which result from:PGE Indemnified Party in connection with, or otherwise with respect to:
(ia) Any material breach of a representation or warranty by Seller, or non-fulfillment the failure of any covenant representation and warranty or obligation of Seller, other statement by Seller contained in this Agreement or any certificate or other document furnished to PGE, to be true and correct in all respects as of the Assignment Effective Date [or the Closing Date, as applicable];
(b) any breach of any covenant or agreement of Seller contained in this Agreement or any certificate or other document furnished to PGE at the Closing;
(c) any Retained Liabilities or Retained Contracts;
(d) any fraud, intentional misrepresentation, willful misconduct by or gross negligence of Seller in connection with this Agreement or the transactions contemplated by this Agreement;
(iie) Any servicing act any claims, actions or omission suits made by third parties (before, on or after the Closing Date) against any PGE Indemnified Party arising from or as a result of any prior servicer relating to any Mortgage Loan and any act the acts or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission omissions of Seller in servicing or any of its Affiliates in connection with the Mortgage Loansdevelopment, including improper action ownership or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller operation of the Asset Purchase AgreementProject or the Project Assets; and
(vif) Litigation, proceedings, governmental investigations, orders, injunctions any liability for Taxes (including Tax Liens) imposed on or decrees resulting from incurred by PGE relating to any taxable period ending on or before the time of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice Closing or the portion of any other taxable period beginning before and occurring on or before the time of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory Closing relating to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account Project or the Current Spread Reserve AccountProject Assets.
Appears in 2 contracts
Indemnification by Seller. Subject to the limitations set forth in this Section 8, in the event of Losses (aas defined below) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered arising by reason of or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material any breach by Seller of a any representation or warranty by Seller, set forth in Section 3 or non-fulfillment any failure of any covenant representation or obligation warranty set forth in Section 3 to have been true and correct (as of Seller, contained in this Agreement the date or the Assignment Agreementdates when such representation or warranty was made);
(ii) Any servicing act or omission any breach by Seller of any prior servicer relating to any Mortgage Loan and any act covenant or omission of any party related to the origination of any Mortgage Loanagreement contained in this Agreement;
(iii) Any act, error the Excluded Assets or omission the Excluded Liabilities or any assertion thereof; provided that solely for the purposes of Seller in servicing any this clause (iii) subsection (y) of the Mortgage Loans, including improper action or failure to act when required to do sodefinition of the term “Losses” shall be deleted but for the avoidance of doubt in any event the term “Losses” shall include all pre-Closing liabilities;
(iv) Any exercise any claim, demand for Taxes assessed against the Buyer or a Buyer’s Designee or liability of Buyer or a Buyer’s Designee for Taxes assessed or assessable against the Seller and relating to, pertaining to, or arising out of the Wireline Communications Business for any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;Pre-Closing Tax Period; or
(v) Any breach fraud or willful misconduct of Seller; (collectively, “Seller Indemnification Events” and each a “Seller Indemnification Event”) Seller shall, or shall cause its Subsidiaries to, put Buyer or, at the election of Buyer, the respective Buyer Designee (each a “Buyer Indemnified Party”), in the position they would have been in had the respective Seller Indemnification Event not occurred (Naturalrestitution). Should this not prove possible or should Seller refuse to do so or should Seller not have done so within four (4) weeks of Seller receiving a notice pursuant to Section 8.3 (b) from Buyer (the “Naturalrestitution Period”), Seller shall pay to the respective Buyer Indemnified Party the amount necessary to compensate such Buyer Indemnified Party from and against any and all (x) Proceedings, liabilities, obligations, Taxes, losses, and (y) all other damages for non-performance (Schadensersatz wegen Nicht- bzw. Schlechterfüllung in Geld) pursuant to Section 249 paragraph 2 German Civil Code (Buergerliches Gesetzbuch; BGB) (including any lost profits (entgangener Gewinn, Section 252 BGB)), any losses caused by Seller business interruptions, and any consequential damages (Folgeschäden, direkte und indirekte Schäden)), and (z) amounts paid in settlement, interest, costs and expenses (including reasonable attorney’s fees, court costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing, and including those occurring during the Naturalrestitution Period, but excluding internal administration and overhead costs) of Buyer or a Buyer Designee (collectively, “Losses”, provided however that “Losses” shall not include any damages in respect of a miscalculation of the Asset Purchase Agreement; and
Price (viincluding an alleged multiplier based on the Purchase Price) Litigationand any other reduction in value of the Buyer or a Buyer Designee (as opposed to one or more individual assets owned by the either of them), proceedings, governmental investigations, orders, injunctions and any punitive damages (unless any such excluded damage resulted from Third Party Claims)) incurred or decrees suffered by such Buyer Indemnified Party by reason of or resulting from any of the items described matters, measures or actions set forth in Section 11.01(a)(i8.2(a)(i) – (vthrough Section 8.2(a)(v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of In the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice event of a Third Party Claim, Seller shall have (without any Naturalrestitution Period) indemnify, defend and hold harmless the right to assume the defense respective Buyer Indemnified Party, from any Losses incurred or suffered by such Buyer Indemnified Party by reason of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into or resulting from any settlement without the prior written consent of the applicable Purchaser Indemniteematters, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment measures or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this actions set forth in Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account8.2(a)(i) through Section 8.2(a)(v) above.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Infineon Technologies Ag), Asset Purchase Agreement (Infineon Technologies Ag)
Indemnification by Seller. (a) Subject to the limitations set forth in Sections 8.1 and 8.5, Seller shall indemnify, defend indemnify and hold Purchaser, its affiliates Buyer and its and their respective directors, managersemployees, officers, employees, agents, representatives directors and advisors Affiliates (the each a “Purchaser IndemniteesBuyer Indemnified Party”) harmless from and shall reimburse against any and all claims, demands, suits, proceedings, judgments, losses, liabilities, damages, costs and expenses, including, but not limited to, reasonable attorneys’ fees, but excluding as described in Section 11.10, any consequential, incidental, punitive damages, lost profits or speculative damages except to the applicable Purchaser Indemnitee for any Losses suffered extent arising pursuant to a third party claim therefor (collectively, “Losses”) imposed upon or incurred by any Purchaser Indemnitee after Buyer Indemnified Party as a result of or in connection with any of the Closing Date which result fromfollowing:
(i) Any material any breach of a representation or warranty made by SellerSeller in Article III, except with respect to Taxes, a breach of a representation or non-fulfillment of any covenant or obligation of Seller, contained warranty made under Section 3.9 shall be limited to all Taxes other than Taxes specified in this Agreement or the Assignment Agreement;(iii) below; or
(ii) Any servicing act the breach of, or omission of default in the performance by Seller of, any prior servicer relating covenant, agreement or obligation to any Mortgage Loan and any act or omission of any party related be performed by Seller pursuant to the origination of any Mortgage Loan;this Agreement; or
(iii) Any actUnited States Income Taxes, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or Texas Margin Taxes and other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described Taxes provided in Section 11.01(a)(i7.1(f) – (v) above;
01for which Seller is liable pursuant to Section 7.1. Purchaser Buyer covenants that it shall notify Seller promptly after receiving written notice of the assertion of not solicit or encourage third parties to commence any litigation, proceedings, governmental investigations, orders, injunctions, decrees proceedings or make any third party claims subject for which a Buyer Indemnified Party would be entitled to indemnification under this Agreement Section 8.2(a) and shall not disclose any information with the intent of soliciting or encouraging third parties to commence such proceedings or make such claims.
(each, b) Within thirty (30) days after receipt by a Buyer Indemnified Party of notice of the commencement of an Action or other event giving rise to a buyer claim with respect to which a Buyer Indemnified Party may be entitled to indemnification under this Section 8.2 (a “Third Party Buyer Claim”). Upon receipt , the Buyer Indemnified Party receiving such notice shall notify (the “Buyer Claim Notice”) Seller in writing of the commencement of such notice of a Third Party Claim, Seller shall have Action or the right to assume the defense assertion of such Third Party Claim using counsel of its choice reasonably satisfactory Buyer Claim; provided, however, that failure to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of give such rights by a Purchaser Indemnitee notice shall not relieve Seller of its obligations hereunder (i) unless the Buyer Indemnified Party fails to deliver a proper Buyer Claim Notice prior to the date specified in Section 8.1(b), or (ii) unless and liabilities under this Section 11.01 or any other provision only to the extent that Seller is materially prejudiced thereby. Seller shall have the option, and shall notify Buyer Indemnified Party in writing within ten (10) Business Days after the date of this Agreement. With respect a Buyer Claim Notice of their election, either: (A) to any Third Party Claim subject to indemnification under this Agreement, participate (at the applicable Purchaser Indemnitee shall be required to cooperate expense of Seller) in good faith with Seller to ensure the proper and adequate defense of such Third-Action or Buyer Claim (in which case the defense of such Action or Buyer Claim shall be controlled by Buyer Indemnified Party) or (B) to take charge of and control the defense of such Action or Buyer Claim (at the expense of Seller). If Seller elects to control the defense, it will not compromise or settle the Action or Buyer Claim if (x) the amount to be paid in settlement, when aggregated with other Buyer Claims, exceeds the Maximum Indemnity Amount, as defined below, or (y) the settlement does not include a provision releasing Buyer Indemnified Party from all liabilities with respect thereto. If Seller fails to notify Buyer Indemnified Party of its election within the applicable response period, then Seller shall be deemed to have elected not to control the defense of such Action or Buyer Claim. For If Seller elects to control the avoidance defense of doubtany Action or Buyer Claim, Buyer Indemnified Party shall have the right to employ separate counsel and participate in the defense of such Action or Buyer Claim, but the fees and expenses of such counsel shall be at the expense of Buyer Indemnified Party unless: (1) the named parties in such Action or Buyer Claim (including any impleaded parties) include both Buyer Indemnified Party and Seller and Buyer Indemnified Party shall have been advised by such counsel that there may be one or more legal defenses available to it that are different from or additional to those available to Seller’s obligations for Purchaser Indemnitees , or (2) Buyer Indemnified Party has reasonably determined that Losses that may be incurred may exceed either individually, or when aggregated with other Buyer Claims, the Maximum Indemnity Amount (in which case, Seller shall not have the right to control the defense of such Action or Buyer Claim on behalf of Buyer Indemnified Party, it being understood, however, that Seller shall not, in connection with such Action or Buyer Claim, be limited liable for the fees and expenses of more than one separate firm of attorneys (in addition to funds available in any local counsel) and that all such fees and expenses shall be reimbursed as they are incurred).
(c) If Seller does not control the Third defense of any Action or Buyer Claim, then Buyer Indemnified Party Controlled Current Spread Custodial Account may settle such Action or Buyer Claim with the Current Spread Reserve Accountprior written consent of Seller (not to be unreasonably withheld).
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Atlas Resource Partners, L.P.)
Indemnification by Seller. (a) Seller hereby agrees that from and after the Closing it shall indemnify, defend and hold Purchaserharmless Buyer, its affiliates and its Affiliates, and their respective directors, managers, officers, employeesshareholders, partners, members, attorneys, accountants, agents, representatives and advisors employees (other than the Transferred Employees) and their heirs, successors and permitted assigns, each in their capacity as such (other than, in the case of clauses (i) and (ii), Buyer or any of its Affiliates solely in their capacity as direct or indirect holders of Joint Venture Securities prior to the Closing (but without limiting the definition of “Retained Claims”) the “Purchaser IndemniteesBuyer Indemnified Parties” and, together with the Seller Indemnified Parties, the “Indemnified Parties”) harmless from, against and in respect of any damages, losses, charges, Liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties, and costs and expenses (including removal costs, remediation costs, closure costs, fines, penalties and expenses of investigation and ongoing monitoring, reasonable attorneys’ fees, and reasonable out of pocket disbursements) (collectively, “Losses”) imposed on, sustained, incurred or suffered by, or asserted against, any of the Buyer Indemnified Parties, whether in respect of third party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from (i) subject to Section 7.2(b), any breach of any representation or warranty made by Seller contained in this Agreement for the period such representation or warranty survives, (ii) any breach of any covenant or agreement of Seller contained in this Agreement and (iii) any Excluded Asset or Excluded Liability (provided that the indemnification under this clause (iii) shall reimburse not permit Buyer or any of its Affiliates in their capacity as a direct or indirect holder of Joint Venture Securities prior to the applicable Purchaser Indemnitee Closing to make any claim against Seller to the extent an Excluded Liability was paid prior to Closing, except to the extent relating to a third party claim in respect thereto).
(b) Seller shall not be liable to the Buyer Indemnified Parties for any Losses suffered or incurred by any Purchaser Indemnitee after with respect to the Closing Date which result from:matters contained in Section 7.2(a)(i):
(i) Any material breach until any such Losses in respect of a representation or warranty by Sellerthe Group 1 Business exceed an aggregate amount equal to the Group 1 Threshold Amount, or non-fulfillment and then for all such Losses in excess of any covenant or obligation of Seller$17,000,000, contained in this Agreement or up to an aggregate amount not to exceed the Assignment Agreement;Group 1 Cap Amount; provided, however, that the limitations herein regarding the Group 1 Threshold Amount shall not apply to the Class 1 Representations and Warranties; and
(ii) Any servicing act or omission until any such Losses in respect of any prior servicer relating to any Mortgage Loan and any act or omission of any party related the Group 2 Business exceed an aggregate amount equal to the origination Group 2 Threshold Amount, and then for all such Losses in excess of any Mortgage Loan;$3,000,000, up to an aggregate amount not to exceed the Group 2 Cap Amount; provided, however, that the limitations herein regarding the Group 2 Threshold Amount shall not apply to the Class 1 Representations and Warranties.
(iiic) Any actSubject to Section 7.8, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure Buyer Indemnified Parties shall be entitled to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by receive payment only from the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller Escrow Account with respect to any Liability of Seller for any Losses under Section 7.2(a) and, with respect to each Specified Business, only up to an aggregate amount not to exceed the Mortgage Loans from Cap Amount applicable to such Specified Business. Notwithstanding anything to the Agency or contrary in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase this Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall not be liable for any Losses that (i) are reflected in the Closing Net Liabilities Amount used in calculating the Final Adjustment Amount to the extent and only to the extent so reflected or (ii) have been actually discharged (or the right to assume the defense of such Third Party Claim using counsel functional equivalent thereof in terms of its choice reasonably satisfactory effect on Buyer, each Specified Business, the Transferred Assets and the Assumed Liabilities) pursuant to the applicable Purchaser IndemniteeDischarge (or, but may not enter into any settlement without as applicable, the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent MCE Discharge or an Additional Discharge) to the entry of a judgment or enter into any settlement with respect extent and only to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of extent so discharged (or such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountfunctional equivalent).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Comcast Corp), Asset Purchase Agreement (Adelphia Communications Corp)
Indemnification by Seller. (a) Subject to the terms of this Article VIII, from and after the Closing, Seller shall indemnifyand Seller Parent will, defend jointly and severally, save, defend, indemnify and hold Purchaserharmless Buyer, its affiliates and its Buyer Parent and their respective Affiliates and each of the directors, officers, equityholders, managers, officersmembers, employees, agents, representatives Representatives, successors and advisors permitted assigns of each of the foregoing (collectively, the “Purchaser IndemniteesBuyer Indemnified Parties”) harmless from and shall reimburse the applicable Purchaser Indemnitee for against any and all Losses asserted against, incurred, sustained or suffered or incurred by any Purchaser Indemnitee after of the Closing Date which Buyer Indemnified Parties as a result fromof, arising out of or relating to:
(ia) Any material any breach of a any representation or warranty made by Seller, Seller Parent or non-fulfillment the Company contained in Article II or Article III, respectively;
(b) any breach of any covenant or obligation of agreement by Seller, Seller Parent or, prior to the Closing, the Company, contained in this Agreement or any Ancillary Agreement (unless a remedy is otherwise provided in such Ancillary Agreement); provided, however, that if Buyer recovers liquidated damages pursuant to Section 10.21(c) in respect of a Specified Trigger Event, Seller and Seller Parent will have no obligation to indemnify the Assignment AgreementBuyer Indemnified Parties against Losses under this Section 8.2(b) for any breach of any covenant or agreement to the extent that such breach constitutes a Specified Trigger Event;
(iic) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage LoanPre-Closing Liability;
(iiid) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase AgreementPre-Closing Taxes; and
(vie) Litigationany Seller Environmental Liability; provided, proceedingshowever, governmental investigations, orders, injunctions that any indemnification obligation of Seller or decrees resulting from Seller Parent under this Section 8.2 in connection with any of the items described remedial action in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion respect of any litigationSeller Environmental Liability will be limited to, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to and the respective indemnification obligations of Seller and Seller Parent under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory are limited to the applicable Purchaser Indemnitee, but may not enter into cost of remediation sufficient to achieve commercial/industrial cleanup standards pursuant to any settlement without the prior written consent order or requirement of the relevant Governmental Authority, if applicable, or as required under applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have Environmental Laws as in effect at the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of time such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountEnvironmental Liability is addressed.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (MSG Entertainment Spinco, Inc.), Membership Interest Purchase Agreement (Madison Square Garden Co)
Indemnification by Seller. Subject to the limits set forth in this Section 8.1, from and after the Closing, Seller shall defend, indemnify and hold Buyer and its affiliates harmless from and against and in respect of any and all actual losses, liabilities, damages, judgments, settlements and expenses, including reasonable attorneys’ fees, but excluding lost profits, consequential, punitive, special or indirect damages (hereinafter "Buyer Losses") arising out of (a) fraud of Seller shall indemnifyor the Company in respect of any representation or warranty contained in this Agreement, defend (b) any and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (all Taxes with respect to any taxable period of the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered Company ending on or incurred by any Purchaser Indemnitee after before the Closing Date or any income or franchise Tax arising as a result of a Section 338(h)(10) Election, and with respect to any Straddle Period, or any portion thereof ending on the Closing Date, (c) any Tax imposed upon Seller, a Seller Group or any affiliate of Seller for any period, (d) any Tax for which result from:
the Company may be liable prior to its acquisition by Buyer (i) Any material breach under Treasury Regulations Section 1.1502-6 (or any similar provision of a representation state, local or warranty by Sellerforeign law), or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act as a transferee or omission of any prior servicer relating to any Mortgage Loan and any act successor or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of by contract. Buyer shall give Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving prompt written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject claim which may give rise to indemnification any indemnity obligation under this Agreement (eachArticle VIII, a “Third Party Claim”). Upon receipt together with the estimated amount of such notice of a Third Party Claimclaim, and Seller shall have the right to assume the defense of any such Third Party Claim using claim through counsel of its choice own choosing by so notifying Buyer within sixty (60) days of receipt of Buyer’s written notice; provided, however, that Seller’s counsel shall be reasonably satisfactory to Buyer. Failure to give prompt notice shall not affect the applicable Purchaser Indemniteeindemnification obligations hereunder in the absence of actual prejudice. If Buyer desires to participate in any such defense assumed by Seller, but it may not enter into do so at its sole cost and expense. If Seller declines to assume any settlement such defense, it shall be liable for all reasonable costs and expenses of defending such claim incurred by Buyer, including reasonable fees and disbursements of counsel. Neither party shall, without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Sellerother party, which consent shall not be unreasonably withheld. Any exercise , settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of an Order which would restrict the future activity or conduct of the other party or any subsidiary or affiliate thereof or if such settlement or compromise does not include an unconditional release of the other party for any liability arising out of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 claim or demand or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account related claim or the Current Spread Reserve Accountdemand.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Datameg Corp), Stock Purchase Agreement (Datameg Corp)
Indemnification by Seller. (a) Subject to the limitations set forth in this Article 7, from and after the Closing, Seller shall indemnify, defend and hold hereby agrees to indemnify Purchaser, its affiliates Affiliates, their respective officers, directors and its employees and their respective directorssuccessors and assigns (collectively, managers, officers, employees, agents, representatives and advisors (the “Purchaser IndemniteesIndemnified Persons”) against, and to hold each of them harmless from from, any and shall reimburse all damages, losses, costs, expenses, fines, penalties and interest ((x) including reasonable and documented out-of-pocket expenses of investigation and reasonable and documented out-of-pocket attorneys’ fees and expenses in connection with any Direct Claim or Third-Party Claim, but (y) excluding (i) punitive, exemplary or speculative damages and (ii) special, indirect or consequential damages, except, in the applicable case of this clause (ii), to the extent such damages were as of the date of this Agreement the reasonably foreseeable consequence of the relevant breach (other than, in the case of this clause (y), any such damages actually paid to a third party in respect of a Third-Party Claim), and (z) including damages arising out of or relating to actual and intentional fraud or Willful Breach) (collectively, “Damages”) to the extent actually suffered by the Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result fromIndemnified Persons and arising out of:
(i) Any material any misrepresentation or breach of a representation or warranty made by Seller, or non-fulfillment of any covenant or obligation of Seller, contained Seller in this Agreement or the Assignment Agreement(“Seller Warranty Breaches”);
(ii) Any servicing act any breach of covenant or omission of any prior servicer relating agreement made or to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;be performed by Seller in this Agreement; or
(iii) Any actany Excluded Liability.
(b) With respect to indemnification by Seller for Seller Warranty Breaches, error or omission other than Seller Warranty Breaches in respect of Seller in servicing Fundamental Representations or Tax Representations or the Extended Representations or as a result of actual and intentional fraud or Willful Breach, (i) Seller shall not be liable for any of such individual Seller Warranty Breach unless the Mortgage LoansDamages with respect thereto exceed $20,000 (the “De Minimis Amount”, including improper action or failure to act when required to do so;
and any such Seller Warranty Breach, a “Qualifying Seller Warranty Breach”), (ivii) Any exercise of Seller shall not be liable for any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller Damages with respect to any Qualifying Seller Warranty Breaches unless and until the Mortgage Loans aggregate amount of Damages with respect to all Qualifying Seller Warranty Breaches exceeds one percent (1%) of the Purchase Price, as adjusted hereunder (the “Threshold”), in which case Seller shall be liable for all Damages with respect to all Qualifying Seller Warranty Breaches from the Agency or in a shortfall first dollar, and (iii) Seller’s maximum liability for all Qualifying Seller Warranty Breaches shall not exceed fifteen percent (15%) of funds to pay the Current Excess Servicing Spread;Purchase Price, as adjusted hereunder (the “Cap”).
(vc) Any breach With respect to indemnification by Seller for all Seller Warranty Breaches, including Seller Warranty Breaches in respect of Seller Fundamental Representations, Tax Representations and Extended Representations, but excluding any Seller Warranty Breaches arising from actual and intentional fraud or Willful Breach, Seller’s maximum aggregate liability shall be limited to the Asset Purchase Agreement; andPrice, as adjusted hereunder (the “Aggregate Cap”).
(vid) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject With respect to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt by Seller for any Seller Warranty Breach in respect of such notice of a Third Party ClaimTax Representations, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right liable for any Damages resulting from or relating to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement Tax with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such ThirdPost-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountClosing Tax Period.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Molina Healthcare Inc), Asset Purchase Agreement (Molina Healthcare Inc)
Indemnification by Seller. (a) Seller shall indemnify, hold harmless and defend and hold PurchaserBuyer, its affiliates and its and their respective directors, managers, officers, employees, agentssubsidiaries, representatives affiliates and advisors their respective successors, permitted assigns and heirs, as applicable (the “Purchaser Buyer Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which from and against all Damages (as defined below in Section 5.4) incurred or suffered by Buyer that result from, relate to or arise out of:
(ia) Any material any misrepresentation or breach of a representation or warranty by Seller, or on the part of Seller under this Agreement;
(b) non-fulfillment of any agreement or covenant or obligation of Seller, contained in this Agreement or on the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission part of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when as required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee Escrow Agreement, the Transition Agreement, the License Agreement and the Mutual Non-Competition Agreement;
(c) all Retained Liabilities of Seller;
(d) all liabilities for the conduct of Seller’s business not purchased hereunder or other actions of Seller occurring after the Closing Date; and
(e) all product liability claims (excluding Warranty Claims which are subject to the terms of sub-paragraphs (f) and (g) below) arising from or in connection with any products manufactured or sold by Seller prior to Closing.
(f) fifty percent (50%) of all Warranty Claims over and above Two Hundred Thousand Dollars ($200,000) of Warranty Claims (the “First Warranty Claim Threshold”). For purposes of clarity, Buyer shall be required responsible for all Warranty Claims up to cooperate in good faith and including the First Warranty Claim Threshold and, thereafter subject to Section 5.1(g), Buyer and Seller shall each be responsible for fifty (50%) of the aggregate amount of all Warranty Claims that exceed the First Warranty Claim Threshold. As used herein, “Warranty Claim” means a claim made against Buyer by a purchaser of any product sold and delivered by Seller prior to the Closing Date for a breach of the warranty offered by Seller for such product and such claim fully complies with Seller to ensure the proper and adequate defense terms of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountwarranty.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Checkpoint Systems Inc), Asset Purchase Agreement (Checkpoint Systems Inc)
Indemnification by Seller. (a) Subject to the provisions of Section 7.4, from and after the Closing Date, the Seller shall indemnifyindemnify and defend, defend save and hold Purchaser, its affiliates the Buyer and its and their respective directors, managers, officers, employees, agentsAffiliates, representatives successor and advisors permitted assigns (collectively, the “Purchaser IndemniteesBuyer Indemnified Parties”) harmless from if any Buyer Indemnified Party shall suffer or incur any damages, Liability, loss, cost, Tax, expense, interest award, judgment or penalty (including all reasonable attorneys’, consultants’ and experts’ fees, including such fees incurred in any action or proceeding between any Indemnified Party and any Indemnifying Party, or reasonable costs of investigation), claim or cause of action (each, a “Loss”), without duplication, arising out of, relating to or resulting from, any and all Buyer Indemnified Events under Section 7.1(b).
(b) As used herein, “Buyer Indemnified Events” shall reimburse be and mean any one or more of the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result fromfollowing:
(i) Any material any untruth or inaccuracy in any representation made by the Seller or the breach of a representation or any warranty made by the Seller, or non-fulfillment of any covenant or obligation of Sellerin each case, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of in any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements certificate delivered by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due at the Closing pursuant to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Seller Event of Breach”);
(ii) any failure by the Seller to perform any covenant or agreement to be performed by the Seller under this Agreement;
(iii) any Excluded Asset or Excluded Liability;
(iv) any Company Transaction Expense not paid on or prior to the Closing;
(v) any Employment Liabilities arising from the termination of the X’Xxxxx Employment Agreement;
(vi) any Working Capital Indemnity Amount required to be paid pursuant to Section 2.4(c);
(vii) (x) any Third-Party Claim arising from the Known Environmental Issue (including any Remedial Action required as a resolution of any such Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have ) or (y) the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent closure of the applicable Purchaser Indemniteeunderground storage tanks identified as Tank 1 and Tank 4 in the Limited Site Assessment dated July 29, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment 2013 by Xxxxx+Xxxxxxx;
(viii) all warranty or enter into any settlement guaranty obligations with respect to Products manufactured by the Third Party Claim without Company or the Business prior written consent to the Closing Date and distributed or sold by the Company or its Affiliates at any time (whether before, on or after the Closing Date) pursuant to the terms of Sellerthe warranties issued in connection with such sales; or
(ix) any product liability claim related to or resulting from the Products manufactured by the Company or the Business prior to the Closing Date or any of the matters set forth on Schedule 3.25; provided, which consent shall however, that Buyer Indemnified Parties will not be unreasonably withheldentitled to any indemnification in any way relating to or arising from the Known Environmental Issue or the closure of the underground storage tanks identified as Tank 1 and Tank 4 in the Limited Site Assessment dated July 29, 2013 by Xxxxx+Xxxxxxx except under Section 7.1(b)(vii).
(c) Except to the extent treated as a liability on the Financial Statements or taken into account in determining Net Working Capital, the Seller shall indemnify the Buyer and hold it harmless from and against (i) all Taxes (or the non-payment thereof) of the Company for all taxable periods ending on or before the Closing Date and the portion through the end of the Closing Date for any taxable period that includes (but does not end on) the Closing Date (“Pre-Closing Tax Period”), and (ii) any Taxes of any other Person for which the Company may become liable pursuant to Treasury Regulations section 1.1502-6 (or analogous provisions of state, local or foreign law) as a result of being a member of a consolidated, combined or unitary group of corporations or pursuant to any Tax sharing, Tax indemnity or similar contract to which the Company was subject prior to the Closing Date. Any exercise The Seller shall reimburse the Buyer for any Taxes of such rights by a Purchaser Indemnitee shall not relieve the Company that are the responsibility of the Seller of its obligations and liabilities under pursuant to this Section 11.01 7.1(c) within fifteen (15) Business Days after the Buyer or the Company notifies the Seller that such Taxes have been paid. All Parties agree that any other provision of dispute as to the amount the Seller owes the Buyer or the Company pursuant to this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee Section 7.1(c) shall be required to cooperate in good faith with Seller to ensure resolved by the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountDispute Resolution Firm.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Commercial Metals Co), Stock Purchase Agreement (Mueller Industries Inc)
Indemnification by Seller. (a) Seller shall indemnify, defend agrees to indemnify and hold PurchaserHFF and USI, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives representatives, successors, and advisors assigns (collectively, including HFF and USI, the “Purchaser IndemniteesBuyer’s Group Members”) harmless from and shall reimburse the applicable Purchaser Indemnitee for against any Losses suffered or and all claims, demands, losses and expenses incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach Buyer’s Group Member in connection with or arising from failure or default of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loanscovenants, including improper action agreements, representations, or failure to act when required to do so;
(iv) Any exercise warranties of Seller under this Agreement, all known debts of Seller as of the Closing Date, and any rights of setoff and all amounts that might be claimed, asserted, or other netting arrangements by the Agency against Seller that results established for as deficiencies in a decrease in Servicing Agreements termination payments due to Seller or with respect to federal or state income taxes, or franchise and other taxes and charges against Seller; and all such deficiencies with respect to operations and business of Seller and the Mortgage Loans from Existing Outlet during the Agency or in a shortfall of funds current fiscal year up to pay the Current Excess Servicing Spread;
(v) Any breach by Closing Date. If any claim is asserted for which Seller of will be obligated to indemnify the Asset Purchase Agreement; and
(vi) LitigationBuyer’s Group Members pursuant to this provision, proceedingsSeller shall, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly within 10 days after receiving written notice of such claim, notify the assertion Buyer’s Group Members in writing whether Seller does or does not have any objection to the payment of the claim. Seller shall not object to the payment of any litigationsuch claim unless Seller shall at the same time inform the Buyer’s Group Members in writing that Seller disputes the claim, proceedingsin whole or in part, governmental investigationsand Seller promptly initiates proper proceedings to contest the claim and undertake the appropriate defense thereof at Seller’s sole cost and expense, ordersand in a manner that may be effective to protect against liability in connection therewith. If within the 10-day period, injunctions, decrees or any third party claims subject Seller has no objection to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt the payment of such notice of a Third Party Claimthe claim, Seller shall be obligated to pay such claim within 10 days after the expiration of the 10-day notice period. The failure of Seller to pay the claim will constitute full authority to the Buyer’s Group Members to either contest the claim or pay the claim. In that event, the Buyer’s Group Members will be entitled to receive from Seller immediately the amount paid, and Seller will have no right to contest the validity of the creditor’s claim against Seller or the Buyer’s Group Members, as the case may be. In the event Seller, within the above mentioned 10-day period, objects in writing to the payment of the claim, and promptly initiates proper proceedings to contest the claim and undertake the appropriate defense thereof, then the Buyer’s Group Members will not have the right authority to assume pay the defense of such Third Party Claim using counsel of its choice reasonably satisfactory claim as herein provided, unless and until the claim in whole or in part is finally determined to be due and owing. In that situation, the applicable Purchaser Indemnitee, but may not enter into any settlement without parties will be bound by the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement foregoing provision with respect to payment of claims. In the Third Party Claim without event Seller fails to indemnify and hold the prior written consent Buyer’s Group Members harmless from any matter described in this paragraph within a reasonable time, or fails to pay any obligations of Seller in a timely manner, the Buyer’s Group Members may cure the default, pay any obligations of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, demand immediate reimbursement from Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Healthy Fast Food Inc), Asset Purchase Agreement (Healthy Fast Food Inc)
Indemnification by Seller. (a) The Seller shall indemnifyagrees to indemnify the Back-Up Servicer, defend the Custodian, the Buyer and hold Purchaserassignees of the Buyer (each an “Indemnified Party”, its affiliates and its and their respective directorscollectively, managers, officers, employees, agents, representatives and advisors (the “Purchaser IndemniteesIndemnified Parties”) harmless from against any and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered all claims, losses, liabilities (including legal fees and related costs) that such Indemnified Parties may sustain directly or incurred by any Purchaser Indemnitee after the Closing Date which result from:
indirectly related to (i) Any material any wrongful or negligent act of, or omission to act, by a Diamond Resorts Party, (ii) any inaccuracy or breach of the representations and warranties of the Seller under Section 5, Schedule I, or Schedule II hereof, (iii) any failure of a Diamond Resorts Party to perform any of its obligations under the Transaction Documents, (iv) any breach or alleged breach by a Diamond Resorts Party of any of the Timeshare Documents, (v) any failure of a Diamond Resorts Party to fulfill its obligations as manager of each Collection or each Resort, and (vi) a failure by the Seller to perform any of its obligations under the Transaction Documents (“Indemnified Amounts”) excluding, however: (A) Indemnified Amounts to the extent resulting from the gross negligence or willful misconduct on the part of such Indemnified Party; (B) any recourse for any uncollectible Timeshare Loan not related to a breach of representation or warranty warranty; (C) any recourse to the Seller for a Defaulted Timeshare Loan; (D) Indemnified Amounts attributable to any violation by Seller, or non-fulfillment an Indemnified Party of any covenant requirement of law related to an Indemnified Party; or obligation (E) the operation or administration of the Indemnified Party generally and not related to this Agreement. The Seller shall: (x) promptly notify the Buyer if a claim is made by a third party with respect to this Agreement, the Timeshare Loans or any of the Conveyed Timeshare Property, and relating to (1) the failure by the Seller to perform its duties in accordance with the terms of this Agreement or (2) a breach of the Seller’s representations, covenants and warranties contained in this Agreement or Agreement, and (y) assume (with the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Sellerrelated Indemnified Party, which consent shall not be unreasonably withheld. Any exercise ) the defense of any such claim and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment, order or decree which may be entered against it or the related Indemnified Party in respect of such rights claim. If the Seller shall have made any indemnity payment pursuant to this Section 9 and the recipient thereafter collects from another Person any amount relating to the matters covered by a Purchaser Indemnitee the foregoing indemnity, the recipient shall not relieve promptly repay such amount to the Seller.
(b) The Seller agrees to pay, and to indemnify, defend and hold harmless the Buyer from, any taxes which may at any time be asserted with respect to, and as of its obligations the date of, the transfer of the Conveyed Timeshare Property to the Buyer hereunder including, without limitation, any sales, gross receipts, general corporation, personal property, privilege or license taxes and liabilities costs, expenses and reasonable counsel fees in defending against the same, whether arising by reason of the acts to be performed by the Seller under this Section 11.01 Agreement or the Servicer under the Agreement or imposed against the Buyer or otherwise. Notwithstanding any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification , the obligation of the Seller under this Section 9(b) shall not terminate upon the resignation or removal of the Servicer pursuant to the Agreement and shall survive any termination of this Agreement, the applicable Purchaser Indemnitee .
(c) The obligations of Seller under this Agreement shall be required to cooperate absolute, unconditional and irrevocable and shall be performed strictly in good faith accordance with Seller to ensure the proper and adequate terms of this Agreement. Without limiting the foregoing, neither the lack of validity or enforceability of, or any modification to, any Transaction Document nor the existence of any claim, setoff, defense (other than a defense of payment) or other right which an Indemnitor may have at any time against the Buyer or any other Person, whether in connection with any Transaction Document or any unrelated transactions, shall constitute a defense to such Third-Party Claim. For obligations.
(d) The obligations of the avoidance Seller under this Section 9 to indemnify the Indemnified Parties shall survive the termination of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available this Agreement and continue until the Timeshare Loans are paid in the Third Party Controlled Current Spread Custodial Account full or the Current Spread Reserve Accountotherwise released or discharged.
Appears in 2 contracts
Samples: Loan Sale and Servicing Agreement (Diamond Resorts Parent, LLC), Loan Sale and Servicing Agreement (Diamond Resorts Parent, LLC)
Indemnification by Seller. If the Closing occurs and subject to the terms and conditions of this Article IX (a) including, without limitation and for the avoidance of doubt, those terms and conditions set forth in Section 9.1), Seller shall agrees, effective as of the Closing, to indemnify, save, defend and hold Purchaserharmless Buyer and each of its officers, its affiliates and its and their respective directors, managersshareholders and representatives (collectively, officers“Insiders”), employeesfrom and against, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for Buyer and its Insiders with respect to, any Losses suffered or and all damages, liabilities, losses, obligations, actions, suits, disbursements, claims, deficiencies, penalties, interest, expenses, fines, assessments, charges and costs (including, without limitation, reasonable attorneys’ and expert witness’ fees, costs of investigation and court costs) of every kind (collectively, “Losses”), imposed on, incurred by or asserted against Buyer or its Insiders (or any Purchaser Indemnitee after the Closing Date which result fromof them) by reason of a third-party claim, action, or proceeding in any way relating to or arising from or out of:
(ia) Any material a breach of a warranty or inaccuracy of representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, Seller contained in this Agreement or any schedule or certificate delivered pursuant hereto or as part of the Assignment transactions contemplated hereby; provided, however, to the extent such representations or warranties are qualified by the term “material” or contain the term “Material Adverse Effect,” such representations and warranties should be read without such qualifications for purposes of determining the amount of damages for such breach, but shall be read with such qualifications for purposes of determining whether there has been a breach;
(b) ownership or operation of the Branches prior to the Effective Time;
(c) the Retained Liabilities (including, for the avoidance of dobut, any litigation identified on Schedule 3.4);
(d) a breach of any covenant of Seller or the failure of Seller to perform any agreement, covenant or obligation of Seller contained in this Agreement or in any other agreement pursuant to this Agreement;
(iie) Any servicing act or omission the termination of employment by Seller prior to the Effective Time of any prior servicer relating to any Mortgage Loan and any act individual who is an officer or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent employee of Seller, which consent shall not be unreasonably withheldincluding claims arising pursuant to all applicable employment laws (except for any actions or obligations of Buyer in connection with such termination, including, without limitation, the Buyer’s failure to offer any Branch Employee an offer of employment); or
(f) all refunds or repayments made by Seller following the Effective Time of credit life or single interest insurance premiums on policies that were issued in connection with Loans made by the Seller before the Effective Time and purchased by Buyer. Any exercise claim for indemnification shall be applicable to each representation independently, irrespective of whether such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or claim is consistent with any other provision of representation contained in this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 2 contracts
Samples: Branch Purchase and Assumption Agreement (Spirit of Texas Bancshares, Inc.), Branch Purchase and Assumption Agreement (Simmons First National Corp)
Indemnification by Seller. (a) Seller shall indemnify, defend indemnify against and hold PurchaserParent, its affiliates Buyer, each of their Affiliates and its and their respective directors, managers, officers, employees, agentsofficers and directors (collectively, representatives and advisors (the “Purchaser Indemnitees”"BUYER INDEMNIFIED PARTIES") harmless from, and agrees to promptly defend any Buyer Indemnified Party from and shall reimburse the applicable Purchaser Indemnitee for any Buyer Indemnified Party for, any and all Losses suffered that such Buyer Indemnified Party may at any time suffer or incurred by any Purchaser Indemnitee after the Closing Date which incur, or become subject to, as a result fromof or in connection with:
(i) Any material breach any failure of a any representation or warranty of Seller or the Majority Stockholder (whether made in or pursuant to this Agreement, the Voting Agreement or in any instrument or certificate delivered by Seller, or non-fulfillment Seller at the Closing in accordance herewith) to be true when made and at and as of any covenant or obligation the Closing Date as if made at and as of Seller, contained in such date (except that representations and warranties that by their terms speak as of the date of this Agreement or the Assignment Agreementsome other date need be true only as of such specified date), in each case, determined without regard to any materiality or Material Adverse Effect qualification contained in any representation or warranty (other than Section 3.15(b)(i)) (each such misrepresentation or breach of warranty, or such failure of any representation or warranty to be true, a "SELLER WARRANTY BREACH");
(ii) Any servicing act any failure by Seller, the Majority Stockholder or omission Xxxxxx Xxxxx to carry out, perform, satisfy and discharge any of any prior servicer relating to any Mortgage Loan and any act its respective covenants, agreements, undertakings, liabilities or omission of any party related to obligations under this Agreement or the origination of any Mortgage LoanAncillary Agreements;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do soExcluded Assets;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing SpreadExcluded Liabilities;
(v) Any breach by Taxes of Seller of for periods or portions thereof ending on or before the Asset Purchase AgreementClosing Date; and
(vi) Litigationthe Business or the operation of the Network to the extent arising before the Effective Time other than any Assumed Liability.
(b) Notwithstanding any other provision to the contrary, proceedings, governmental investigations, orders, injunctions or decrees Seller shall not be required to indemnify and hold harmless any Buyer Indemnified Party pursuant to Section 12.03(a)(i): (A) unless such Buyer Indemnified Party has asserted a claim in accordance with Section 12.04 below with respect to such matters within the applicable survival period set forth in Section 12.01 and (B) until the aggregate amount of the Buyer Indemnified Parties' Losses resulting from any single Seller Warranty Breach or set of related Seller Warranty Breaches exceeds $225,000; PROVIDED, 58 HOWEVER, that the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify cumulative indemnification obligation of Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”)Article XII shall in no event exceed $15 million. Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement Except with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 fraud or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreementwillful breach, the applicable Purchaser Indemnitee rights and remedies of the Buyer Indemnified Parties for a Loss relating to a Seller Warranty Breach shall be required to cooperate limited, for all purposes as set forth in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountthis Article XII.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Stein Avy H), Asset Purchase Agreement (CTN Media Group Inc)
Indemnification by Seller. (a) From and after the Closing, and subject to the terms of this Agreement (including the applicable limitations set forth in this Article X), Seller shall indemnify, defend and hold harmless Purchaser, its affiliates and its Affiliates, and their respective directors, managersofficers, officersagents, employees, agentssuccessors and assigns (collectively, representatives and advisors (the “Purchaser IndemniteesIndemnified Parties”) harmless from against, and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which Indemnified Party for, all Losses that such Purchaser Indemnified Party may suffer or incur, or become subject to, without duplication, as a result fromof:
(i) Any material breach the failure of a any representation or warranty by Sellerof Seller contained in Article III to be true and correct at and as of the Closing; provided, that any qualifications as to materiality, “Material Adverse Effect” or non-fulfillment other similar materiality qualifications included in such representation or warranty shall be disregarded for purposes of the determination of whether or not such breach has occurred and for purposes of calculating the amount of any covenant Losses subject to indemnification hereunder (it being understood and agreed that any reference as to materiality, “Material Adverse Effect” or obligation other similar materiality qualifications shall be given effect for purposes of Sellerthe definitions of “Material Adverse Effect”, “Material Contracts” and “Permitted Liens” and the representations and warranties contained in this Agreement or Section 3.4, Section 3.5, Section 3.11(a), the Assignment Agreementsecond sentence of Section 3.11(h) and the first sentence of Section 3.12(a));
(ii) Any servicing act any breach or omission of any prior servicer relating failure by Seller to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing perform any of the Mortgage Loans, including improper action its covenants or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results agreements contained in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase this Agreement; and
(viiii) Litigationany Excluded Liability.
(b) Notwithstanding anything in this Agreement to the contrary, proceedings, governmental investigations, orders, injunctions or decrees resulting the rights of the Purchaser Indemnified Parties to indemnification pursuant to this Article X shall be subject to the following limitations (in addition to any other limitations set forth herein).
(i) The Purchaser Indemnified Parties shall not be entitled to recover for any particular Loss under Section 10.2(a)(i) that arises from any individual item, occurrence, circumstance, act or omission (or series of related items, occurrences, circumstances, acts or omissions) unless and until the items described amount of all Losses resulting therefrom exceeds $500,000 (the “De Minimis Threshold”), nor shall any Losses excluded pursuant to this Section 10.2(b)(i) be taken into account for purposes of determining whether the General Cap has been exceeded in respect of claims made by the Purchaser Indemnified Parties.
(ii) The Purchaser Indemnified Parties shall not be entitled to recover Losses under Section 10.2(a)(i) until the total amount of Losses for which the Purchaser Indemnified Parties would recover under Section 10.2(a)(i) (as limited by Section 10.2(b)(i)), exceeds $67,000,000, in which case the Purchaser Indemnified Parties shall only be entitled to recover Losses in excess of such amount, subject to the other limitations herein (including Section 10.2(b)(iii)).
(iii) The Purchaser Indemnified Parties shall not be entitled to recover Losses under Section 10.2(a)(i) in respect of representations and warranties (other than those set forth in Section 11.01(a)(i3.18(a) – and Section 3.18(b)) in excess of $804,000,000 in the aggregate (the “General Cap”).
(iv) The limitation set forth in Section 10.2(b)(iii) shall not apply to any Seller Specified Representations or the representations and warranties contained in Section 3.18.
(v) above;
01. The Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which Indemnified Parties shall not be unreasonably withheld. A entitled to recover Losses under Section 10.2(a)(i) in respect of the representations and warranties set forth in Section 3.18(a) (when taken together with any other Losses recovered under Section 10.2(a)(i) in respect of the representations and warranties set forth in Section 3.18(b)) in excess of $2,010,000,000 in the aggregate, and the Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent Indemnified Parties shall not be unreasonably withheld. Any exercise entitled to recover Losses under Section 10.2(a)(i) in respect of such rights by a the representations and warranties set forth in Section 3.18(b) (when taken together with any other Losses recovered under Section 10.2(a)(i) in respect of the representations and warranties set forth in Section 3.18(a)) in excess of $2,680,000,000 in the aggregate.
(vi) The Purchaser Indemnitee Indemnified Parties shall not relieve Seller of its obligations and liabilities be entitled to recover Losses under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this AgreementArticle X (including, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For for the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited any Losses pursuant to funds available Section 10.2(a)(i) (whether in respect of Seller Specified Representations or otherwise)) in the Third Party Controlled Current Spread Custodial Account or aggregate that are in excess of, and in no event shall the Current Spread Reserve Accountindemnification obligations of Seller under this Article X in the aggregate exceed, an amount equal to the Purchase Price.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Amgen Inc), Asset Purchase Agreement (Celgene Corp /De/)
Indemnification by Seller. (a) After the Closing Date and subject to the additional provisions set forth in this ARTICLE XI, Seller shall indemnify, defend indemnify Buyer and hold Purchaser, its affiliates and its and their respective directors, managersBuyer’s stockholders, officers, employeesdirectors, agents, employees and representatives and advisors (the each a “Purchaser IndemniteesBuyer Indemnitee”) against, and hold each Buyer Indemnitee harmless from, any and all claims, losses, damages, liabilities, payments and obligations, and all reasonable out-of-pocket expenses, including, without limitation, reasonable legal fees and costs of settlement whether or not arising from and shall reimburse a third party claim (collectively “Losses”), incurred, suffered, sustained or required to be paid, directly or indirectly, by, or imposed upon, such Buyer Indemnitee resulting from, related to or arising out of (i) any breach or inaccuracy as of the applicable Purchaser Indemnitee for any Losses suffered Agreement Date or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a any representation or warranty by Seller, of the Company or non-fulfillment of any covenant or obligation of Seller, Seller contained in this Agreement or the Assignment Company Ancillary Agreements delivered to Buyer pursuant to the provisions of this Agreement;
; (ii) Any servicing act any breach by the Company or omission Seller or any failure of the Company or Seller to perform any prior servicer relating of the covenants or obligations contained in this Agreement or the Company Ancillary Agreements delivered to any Mortgage Loan and any act or omission of any party related Buyer pursuant to the origination provisions of any Mortgage Loan;
this Agreement; (iii) Any act, error any Indebtedness of the Company or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
its Subsidiaries; (iv) Any exercise the matter disclosed in Section 3.8(1) of the Disclosure Schedule (the “Specified Matter”) but only to the extent of any rights Losses in excess of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
$250,000; and (v) Any breach by Seller the matter disclosed in Section 3.8(2) of the Asset Purchase Agreement; and
Disclosure Schedule. Seller shall indemnify and hold harmless Buyer and Buyer’s direct and indirect customers and each of their officers, directors, employees, and agents from and against any and all damages (vi) Litigationincluding, proceedingswithout limitation, governmental investigations, orders, injunctions or decrees any lost profits resulting from any of the items described in Section 11.01(a)(itemporary or permanent injunction), liabilities, judgments, losses, expenses (including attorneys’ fees) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees and costs arising from or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory relating to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountmatter set forth on Schedule 11.2.
Appears in 2 contracts
Samples: Unit Purchase Agreement, Unit Purchase Agreement (Rovi Corp)
Indemnification by Seller. (a) Seller shall indemnify, defend save and hold Purchaserharmless, Buyer, its affiliates and its Affiliates, and their respective directorsRepresentatives from and against any and all Losses, managerscosts, officerslosses, employeesliabilities (including liabilities arising under principles of strict or joint and several liability), agentsdamages, representatives lawsuits, deficiencies, claims and advisors expenses (whether or not arising out of Third Party Claims), including interest, penalties, additions, travel expenses, wages allocable to loss of employee time, reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively, the “Purchaser IndemniteesDamages”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered ), incurred in connection with or incurred by any Purchaser Indemnitee after the Closing Date which result arising out of or resulting from:
(ia) Any any breach or inaccuracy in any of the representations or warranties of Seller contained in this Agreement, any Closing Document to which Seller is a party or any certificate delivered by or on behalf of Seller pursuant to this Agreement (any such breach or inaccuracy to be determined without regard to any qualification for “materiality,” “in all material respects” or similar qualification);
(b) any breach of a representation or warranty by Seller, or non-fulfillment violation of any covenant covenant, agreement or other obligation of Seller, contained Seller set forth in this Agreement or the Assignment Agreementany Closing Document to which Seller is a party;
(iic) Any servicing act if the Closing has occurred, any failure by Seller to pay, perform or omission of discharge any prior servicer relating to any Mortgage Loan Retained Liabilities as and any act or omission of any party related to the origination of any Mortgage Loanwhen due;
(iiid) Any actif the Closing has occurred, error any failure by Seller to pay, perform or omission of Seller in servicing discharge any of the Mortgage Loans, including improper action or failure to act Retained Liability as and when required to do sodue;
(ive) Any exercise if the Closing has occurred, any liability, obligation or commitment of Seller of any rights of setoff nature (absolute, accrued, contingent or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect otherwise) relating to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing SpreadColstrip 4 Interests and not assumed;
(vf) Any breach Seller’s portion of any Transfer Taxes in accordance with Section 7.8(b);
(g) any fraud, willful misconduct or gross negligence in connection with this Agreement by Seller of the Asset Purchase Agreementor its Affiliates; andor
(vih) Litigationany claim by a third-party or liability to a third-party, proceedingsincluding a current or former Project User, governmental investigations, orders, injunctions or decrees resulting from any of to the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of extent it seeks to hold Buyer responsible for more than the assertion share of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate Losses provided for in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountSections 8.2 through 8.6 above.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Northwestern Corp), Purchase Agreement
Indemnification by Seller. (a) Subject to the limitations set forth in Sections 9.1 and 9.4, and Section 8.2, Seller shall indemnify, defend hereby agrees to indemnify and hold Purchaserthe Buyer, its affiliates and its NCNG, or any successors or assigns thereof, and their respective directors, managersemployees, officers, employees, agents, representatives directors and advisors affiliates (the “Purchaser Indemnitees”each a "Buyer Indemnified Party") harmless from and shall reimburse the applicable Purchaser Indemnitee for against any Losses suffered and all claims, demands, suits, proceedings, judgments, losses, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") imposed upon or incurred by any Purchaser Indemnitee after Buyer Indemnified Party as a result of or in connection with any of the Closing Date which result fromfollowing:
(i) Any material inaccuracy or breach of a representation or warranty made by SellerSeller in Article III, Article IV, or non-fulfillment Section 8.4 of this Agreement, or in any covenant or obligation of Seller, contained in other agreements executed by the parties and delivered at Closing pursuant to this Agreement or the Assignment Agreement;; or
(ii) Any servicing act The breach of, or omission of default in the performance by Seller of, any prior servicer relating covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or any Mortgage Loan and any act agreement or omission of any party related to the origination of any Mortgage Loan;instrument executed in connection herewith or pursuant hereto.
(iiib) Any act, error or omission Within sixty (60) days after receipt by the Buyer of Seller in servicing any notice of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff an Action or other netting arrangements by the Agency against Seller that results in event giving rise to a decrease in Servicing Agreements termination payments due to Seller Buyer Claim with respect to the Mortgage Loans from the Agency or in which a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject Buyer Indemnified Party is entitled to indemnification under this Agreement Section 9.2, the Buyer shall notify (eachthe "Buyer Claim Notice") Seller in writing of the commencement of such Action or the assertion of such Buyer Claim; provided, a “Third however, that failure to give such notice shall not affect the right to indemnification hereunder except to the extent of actual prejudice to Seller. Seller shall have the option, and shall notify the Buyer Indemnified Party Claim”in writing within ten Business Days after the date of the Buyer Claim Notice of its election, either: (A) to participate (at the expense of Seller) in the defense of such Action or Buyer Claim (in which case the defense of such Action or Buyer Claim shall be controlled by the Buyer Indemnified Party) or (B) to take charge of and control the defense of such Action or Buyer Claim (at the expense of Seller). Upon receipt If Seller elects to control the defense, it will not compromise or settle the Action or Buyer Claim if (X) the amount to be paid in settlement exceeds the Maximum Indemnity Amount or (Y) the settlement does not include a provision releasing the Buyer Indemnified Party from all liabilities with respect thereto. If Seller fails to notify the Buyer Indemnified Party of its election within the applicable response period, then Seller shall be deemed to have elected not to control the defense of such notice Action or Buyer Claim. If Seller elects to control the defense of a Third Party any Action or Buyer Claim, Seller the Buyer Indemnified Party shall have the right to assume employ separate counsel and participate in the defense of such Third Action or Buyer Claim, but the fees and expenses of such counsel shall be at the expense of the Buyer Indemnified Party unless: (1) the named parties in such Action or Buyer Claim using (including any impleaded parties) include both the Buyer Indemnified Party and an indemnifying party and the Buyer Indemnified Party shall have been advised by such counsel of its choice reasonably satisfactory that there may be one or more legal defenses available to it that are different from or additional to those available to the applicable Purchaser Indemniteeindemnifying party, but or (2) the Buyer Indemnified Party has reasonably determined that Losses that may not enter into any settlement without be incurred may exceed either individually, or when aggregated with other Buyer Claims, the prior written consent of the applicable Purchaser IndemniteeMaximum Indemnity Amount (in which case, which Seller shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select control the defense of such Action or Buyer Claim on behalf of the Buyer Indemnified Party, it being understood, however, that the Seller shall not, in connection with such Action or Buyer Claim, be liable for the fees and expenses of more than one separate counsel firm of attorneys (in addition to any local counsel) and to otherwise separately defend itself at its own expense but that all such fees and expenses shall be reimbursed as they are incurred).
(c) If Seller does not consent to control the entry defense of a judgment any Action or enter into any settlement Buyer Claim, then the Buyer Indemnified Party may settle such Action or Buyer Claim with respect to the Third Party Claim without the prior written consent of Seller, which consent shall Seller (not to be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Progress Energy Inc), Stock Purchase Agreement (Piedmont Natural Gas Co Inc)
Indemnification by Seller. (a) Seller shall indemnify, will at its own expense indemnify and defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless Buyer from and shall reimburse the applicable Purchaser Indemnitee for against any Losses suffered claims made or incurred brought against Buyer by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement alleging that Services (including the intellectual property contained therein) infringe such third party’s Intellectual Property rights or misappropriate any trade secret of such third party (each, a “Third Party Infringement Claim”). Upon receipt of such notice of Seller will pay any damages finally awarded by a Third Party Claim, court or agreed to by Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of in a judgment or enter into any settlement with respect to such Third Party Infringement Claim; provided that Buyer: (i) promptly gives written notice of the Third Party Infringement Claim without to Seller; (ii) gives Seller sole control of the prior written consent defense and settlement of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account Infringement Claim (provided that Seller may not agree to any settlement that imposes any liability or obligation on Buyer without Buyer’s prior written consent, not to be unreasonably conditioned, delayed or withheld); and (iii) provides to Seller, at Seller’s cost, all reasonable assistance. Seller does not have any obligation to defend or indemnify if a Third Party Infringement Claim arises as a result of or in connection with: (i) Buyer’s use of Services other than as contemplated by this Agreement; (ii) any modifications to Services made by any entity other than Seller; (iii) any combination of Services with any services or technologies not approved by Seller; (iv) Buyer’s use of Services or any portion thereof after Seller has terminated this Agreement or such portion of Services; (v) Buyer’s negligence or willful misconduct; or (vi) Buyer’s Intellectual Property. If Seller determines that Services are infringing or likely to infringe any third party’s Intellectual Property rights, or if as a result of any claim or litigation Seller or Buyer is temporarily or permanently enjoined from licensing or using Services, Seller may, at its option in its sole and absolute discretion: (i) promptly procure for Buyer the Current Spread Reserve Accountright to continue to use potentially infringing portion of Services as contemplated by this Agreement; (ii) replace or modify Services, or potentially infringing portion thereof, to avoid the potential infringement; or (iii) if Seller determines that neither (i) nor (ii) is commercially reasonable, terminate the relationship and this Agreement immediately without incurring liability and refund the amount of any fees pre-paid by Buyer. THIS SECTION SETS FORTH SELLER’S SOLE AND EXCLUSIVE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT CLAIMS BY THIRD PARTIES.
Appears in 2 contracts
Samples: Independent Contractor Purchase and Services Agreement, Independent Contractor Purchase and Services Agreement
Indemnification by Seller. (a) Seller shall indemnify, defend defend, and hold Purchaser, its affiliates and its Buyer and their respective officers, directors, managers, officers, employees, agentsand shareholders and their respective successors and assigns (collectively, representatives and advisors (the “Purchaser Indemnitees”"Buyer's Indemnified Persons") harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered against an Indemnity Loss asserted against, suffered, or incurred by any Purchaser Indemnitee after the Closing Date which result fromof Buyer's Indemnified Persons arising out of or in any way related to:
(i) Any material misrepresentation in or breach of a representation the representations and warranties of Seller or warranty by Seller, the failure of Seller to perform any of its covenants or non-fulfillment of any covenant or obligation of Seller, obligations contained in this Agreement, the Assignment Agreements, or in any exhibit, schedule, certificate or other instrument or document furnished to or to be furnished by Seller pursuant to this Agreement or in connection with the Assignment transactions contemplated by this Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related Except with respect to the origination Assumed Liabilities assumed by Buyer under this Agreement, the operation of any Mortgage LoanSeller's business or the use of the Purchased Assets prior to the date hereof;
(iii) Any actactions, error claims, suits, or omission of Seller in servicing any proceedings asserted by third parties alleging personal injury or property damage due to, arising out of, or by reason of the Mortgage Loansdesign, including improper action manufacture or failure use of any products of the Seller's business manufactured on or prior to act when required to do sothe Closing Date;
(iv) Any exercise worker's compensation claims of any rights employee or former employee of setoff Seller relating to events occurring on or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect prior to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing SpreadClosing Date;
(v) Any breach by Seller and all claims for compensation and other employee benefits (including, but not limited to, severance pay, outplacement benefits, disability benefits, health, retiree medical, worker's compensation, tuition assistance, death benefits, and pension and profit sharing plans and claims relating to employment or termination of employment) accruing on or prior to the Asset Purchase Agreement; anddate hereof, or on or after the date hereof with respect to the payment of severance benefits and other welfare benefit payments, if any, with respect to (i) employees in the Seller's business who are laid off on or prior to the date hereof and (ii) employees in the Seller's business who, on the date hereof, are on medical leave or disability, and related costs and liabilities, regardless of whether such claims and related costs and liabilities are made or incurred before, on or after the Closing Date;
(vi) LitigationAll claims, investigations, actions, suits, proceedings, governmental investigationsdemands, ordersassessments, injunctions judgments, costs and expenses, including reasonable attorneys' fees and expenses, incident to the foregoing (other than Assumed Liabilities); or
(vii) Any liabilities, obligations or decrees resulting from any expenses of Seller not included in the Assumed Liabilities assumed by Buyer pursuant to the provisions of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 2 contracts
Samples: Sale Agreement (Teltronics Inc), Agreement of Sale (Telident Inc /Mn/)
Indemnification by Seller. (a) Subject to the limitations set forth in this ARTICLE VI, and the other provisions of this Agreement, Seller shall indemnify, defend protect, defend, exculpate and hold Purchaser, Purchaser's Permitted Assignees and its affiliates (including the Company and its Subsidiaries) and their respective partners, directors, managersmembers, shareholders, officers, employeesemployees and agents (collectively, agents, representatives and advisors (the “"Purchaser Indemnitees”Indemnified Parties") harmless from and shall against, and agree promptly to defend Purchaser Indemnified Parties from and reimburse the applicable Purchaser Indemnitee for Indemnified Parties for, any Losses suffered and all actual losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable costs of investigation, reasonable attorneys' fees and other reasonable legal costs and expenses) ("Purchaser Indemnified Losses") which Purchaser Indemnified Parties may at any time suffer or incurred by any Purchaser Indemnitee after the Closing Date which incur, or become subject to, as a result fromof or in connection with:
(i) Any material breach or inaccuracy in any of a representation the representations or warranty warranties made by Seller in or pursuant to this Agreement or in any instrument, certificate or affidavit delivered by Seller, or non-fulfillment of any covenant or obligation of caused to be delivered by Seller, contained at the Closing, or from any misrepresentation in this Agreement or the Assignment Agreementany Exhibit, Schedule, certificate, or other executed document furnished or to be furnished to Purchaser hereunder;
(ii) Any servicing act failure by Seller to materially carry out, perform, satisfy and discharge any of its other covenants, agreements, undertakings, liabilities or omission of obligations under this Agreement or as set forth in any prior servicer relating instrument, certificate or affidavit delivered by Seller, or caused to any Mortgage Loan and any act or omission of any party related be delivered by Seller, at the Closing, to the origination extent the same is an obligation of any Mortgage LoanSeller to so carry out, perform, satisfy or discharge;
(iii) Any actand all claims brought by third parties, error including any suit action or omission of Seller in servicing any other proceeding brought by applicable Governmental Authorities or quasi-governmental authorities against Purchaser, the Company or its Subsidiaries arising from the ownership of the Mortgage Loans, including improper action or failure Shares prior to act when required to do soClosing;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect Subject to the Mortgage Loans from provisions for fees and costs set forth in Section 9.2 below, any fees and expenses payable to attorneys, consultants or accountants retained or hired by or on behalf of Seller, the Agency or Company and its Subsidiaries and their respective affiliates and representatives in a shortfall of funds to pay connection with the Current Excess Servicing Spreadtransactions contemplated by this Agreement;
(v) Any breach claim by or on behalf of Seller or any of its affiliates for any amounts owed by the Company or any of the Asset Purchase AgreementSubsidiaries to Seller or any of its affiliates prior to or as of the Closing; and
(vi) LitigationAny and all claims brought against the Company or CMCP Island Lake in connection with the Island Lake Loan, proceedingsto the extent that any such claim relates to any period, governmental investigations, orders, injunctions or decrees resulting from any action of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees Company or any third party claims subject Subsidiary (including CMCP Island Lake) occurring, prior to indemnification under this Agreement (eachthe Closing Date, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, provided that the Seller shall have no liability hereunder: (A) if the right tenant under the Property Lease Agreement for the Real Property located in Island Lake, Florida was required pursuant to, and during the term of, such lease to assume reimburse or indemnify the defense landlord under such lease for the liabilities and/or obligations arising in connection with, or contemplated by, such claim; or (B) for any claims, including, without limitation, claims for out of such Third Party Claim using counsel pocket costs, legal fees and breakage fees incurred or payable in connection with the pursuit of its choice reasonably satisfactory the defeasance of the Island Lake Loan, that may arise in connection with, or as the result of, the defeasance of the Island Lake Loan contemplated by Section 2.3(d) of the Island Lake Note (hereinafter defined) except to the applicable Purchaser Indemniteeextent of any such claims resulting directly from a false or misleading representation, but may not enter into warranty or certification made by the Company or CMCP Island Lake in any settlement without document or certificate delivered in connection with such defeasance. For the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision purposes of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, "Island Lake Loan" shall mean the loan evidenced by that certain Note Renewal, Amendment and Restatement Agreement dated as of July 30, 1999 (as amended or otherwise modified, the applicable Purchaser Indemnitee shall be required to cooperate "Island Lake Note"), which was assumed by CMCP Island Lake, as assuming borrower, and which loan is secured by a mortgage against the Real Property located in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubtIsland Lake, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountFlorida.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Brookdale Senior Living Inc.), Stock Purchase Agreement (Capstead Mortgage Corp)
Indemnification by Seller. (a) Seller shall indemnify, defend indemnify and hold Purchaser, harmless Buyer and its affiliates subsidiaries and its and their respective officers, directors, managers, officers, employees, agents, representatives representatives, successors, permitted assigns and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement controlling persons (each, a “Third Buyer Indemnified Party”) from and against any Liability, demand, action, cause of action, and Damage which a Buyer Indemnified Party Claim”)incurs, suffers, sustains or becomes subject to based upon, in whole or in part, any claims, Liabilities, Indebtedness or obligations which relate to a material breach of any representation, warranty or covenant made by Seller contained in this Agreement; provided, however, that in no event shall Seller be obligated by this Section 6.1(a) to indemnify Buyer for any amount in excess of the Purchase Price paid by Buyer to Seller.
(b) Seller shall indemnify and hold harmless any Buyer Indemnified Party from and against any and all Liabilities, demands, actions, causes of action, and Damages, joint or several, to which any such Buyer Indemnified Party may become subject arising out or in connection with the transactions contemplated by this Agreement. Upon receipt or any claim, litigation, investigation or proceedings relating to the foregoing regardless of whether any of such notice Buyer Indemnified Party is a party thereto, and to reimburse such Buyer Indemnified Party for any legal or other expenses as they are incurred in connection with investigating, responding to or defending any of a Third Party Claimthe foregoing, provided that any Losses, claims, Damages, Liabilities and expenses are finally judicially determined to have resulted from the gross negligence or willful misconduct of Seller. Notwithstanding anything in this Section 6.1(b), Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into responsible for any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities indemnification payments under this Section 11.01 or any other provision 6.1(b) in excess of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account$100,000.
Appears in 2 contracts
Samples: Asset Purchase Agreement (DelMar Pharmaceuticals, Inc.), Asset Purchase Agreement (Adgero Biopharmaceuticals Holdings, Inc.)
Indemnification by Seller. (a) Subject to the limitations set forth in this Article VIII, from and after the Closing, Seller shall indemnify, defend and hold Purchaserindemnify Buyer, its affiliates and its Affiliates, and their respective directorsRepresentatives (each, managersa “Buyer Indemnified Party)” against any and all losses, officersliabilities, employeesexpenses (including reasonable and documented attorneys’ fees and expenses in connection with any third party action, agentssuit or proceeding) and damages (collectively, representatives and advisors (the “Purchaser IndemniteesLosses”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by such Buyer Indemnified Party, to the extent arising or resulting from any Purchaser Indemnitee after of the Closing Date which result fromfollowing:
(i) Any material any breach of a any representation or warranty made by Seller, or non-fulfillment of any covenant or obligation of Seller, contained Seller in this Agreement or the Assignment AgreementTransaction Documents;
(ii) Any servicing act or omission any breach of any prior servicer relating to any Mortgage Loan and any act covenant or omission agreement of any party related to Seller contained in the origination of any Mortgage LoanTransaction Documents;
(iii) Any act, error any Recipient Confidentiality Breach by any Person who receives Confidential Information from or omission on behalf of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;under Section 6.1; and
(iv) Any exercise the Excluded Assets and the Excluded Liabilities and Obligations. The foregoing shall exclude any Losses of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect Buyer Indemnified Party to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees extent resulting from any of (A) the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion bad faith, gross negligence, intentional misrepresentation, willful misconduct or fraud of any litigationBuyer Indemnified Party, proceedings, governmental investigations, orders, injunctions, decrees or (B) any third party claims subject matter in respect of which any Seller Indemnified Party would be entitled to indemnification under this Agreement Section 8.1(b), or (each, a “Third C) acts or omissions of Seller taken (or omitted to be taken) based upon the express written instructions from any Buyer Indemnified Party. Any amounts determined to be due to any Buyer Indemnified Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory hereunder in accordance with and subject to the applicable Purchaser Indemniteeterms, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel conditions and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision procedures of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee Article VIII shall (if not otherwise paid) be required to cooperate in good faith with payable by Seller to ensure the proper and adequate defense of such Third-Buyer Indemnified Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited within [***] Business Days following written demand delivered to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountSeller by such Buyer Indemnified Party.
Appears in 2 contracts
Samples: Payment Interest Purchase Agreement (Talphera, Inc.), Payment Interest Purchase Agreement (XOMA Corp)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Sale Date or the Subsequent Sale Date, as applicable, which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency any Owner against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency such Owner or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase and Sale Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 2 contracts
Samples: Current Excess Servicing Spread Acquisition Agreement (Nationstar Mortgage Holdings Inc.), Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp)
Indemnification by Seller. (a) Subject to the limitations set forth in Section 8.3, Seller shall indemnify, defend hereby agrees to indemnify and hold Purchaser, Buyer and its affiliates and its and their respective directorsemployees, officers, managers, officers, employees, agents, representatives members and advisors directors (the each a “Purchaser IndemniteesBuyer Indemnified Party”) harmless from and shall reimburse the applicable Purchaser Indemnitee for against any Losses suffered and all claims, demands, suits, proceedings, judgments, losses, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) imposed upon or incurred by any Purchaser Indemnitee after Buyer Indemnified Party as a result of or in connection with any of the Closing Date which result fromfollowing:
(i) Any material any breach of a representation or warranty made by Seller, or non-fulfillment of any covenant or obligation of Seller, contained Seller in this Agreement or in the Assignment Agreementcertificate delivered by Seller pursuant to Section 6.4(a)(ii) or any agreement or instrument executed in connection herewith or pursuant hereto;
(ii) Any servicing act the breach of, or omission of default in the performance by Seller of, any prior servicer relating covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or any Mortgage Loan and any act agreement or omission of any party related to the origination of any Mortgage Loaninstrument executed in connection herewith or pursuant hereto;
(iii) Any act, error the Excluded Assets or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;Retained Liabilities; or
(iv) Any exercise of any rights of setoff responsibility for any offsite transportation, treatment, storage or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach disposal by Seller of Hazardous Materials produced on, at or from any the Asset Purchase Agreement; andAssets prior to the Closing Date.
(vib) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any Within forty-five (45) days after receipt by a Buyer Indemnified Party of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion commencement of any litigation, proceedings, governmental investigations, orders, injunctions, decrees an Action or any third party claims subject other event giving rise to a claim by a Buyer Indemnified Party for indemnification under this Agreement Section 8.4 (each, a “Third Party Buyer Claim”). Upon receipt , the Party receiving such notice shall notify (the “Buyer Claim Notice”) Seller in writing of the commencement of such Action or the assertion of such Buyer Claim; provided, however, that failure to give such notice shall not relieve Seller of a Third Party Claim, its obligations hereunder unless and only to the extent that Seller is materially prejudiced thereby. Seller shall have the right option, and shall notify Buyer Indemnified Party in writing within ten (10) Business Days after its receipt of a Buyer Claim Notice of its election, either: (A) to assume participate (at the expense of Seller) in the defense of such Third Party Action or Buyer Claim using counsel (in which case the defense of its choice reasonably satisfactory such Action or Buyer Claim shall be controlled by Buyer Indemnified Party) or (B) to take charge of and control the applicable Purchaser Indemniteedefense of such Action or Buyer Claim (at the expense of Seller). If Seller elects to control the defense, but may it will not enter into any settlement without compromise or settle the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment Action or enter into any settlement with respect to the Third Party Buyer Claim without the prior written consent of Seller, Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), except as provided in Section 8.6. Any exercise of such rights by a Purchaser Indemnitee shall not relieve If Seller fails to notify Buyer Indemnified Party of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, election within the applicable Purchaser Indemnitee response period, then Seller shall be required deemed to cooperate in good faith with Seller have elected not to ensure control the proper and adequate defense of such Third-Party Action or Buyer Claim. For If Seller elects to control the avoidance defense of doubtany Action or Buyer Claim, Seller’s obligations for Purchaser Indemnitees Buyer Indemnified Party shall not be limited have the right to funds available employ separate counsel and participate in the Third defense of such Action or Buyer Claim, but the fees and expenses of such counsel shall be at the expense of Buyer Indemnified Party.
(c) Except as provided in Section 8.6, if Seller does not control the defense of any Action or Buyer Claim, then Buyer Indemnified Party Controlled Current Spread Custodial Account may settle such Action or Buyer Claim only with the Current Spread Reserve Accountprior written consent of Seller (not to be unreasonably withheld, conditioned or delayed).
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Magnum Hunter Resources Corp)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Sale Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase and Sale Agreement;
(vi) Any termination of Seller by the Agency pursuant to Section 10 of the Servicing Transfer Agreement; and
(vivii) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v11.01(a)(i)-(vi) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 2 contracts
Samples: Current Excess Servicing Spread Acquisition Agreement (Nationstar Mortgage Holdings Inc.), Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp)
Indemnification by Seller. (a) Seller shall hereby agrees to indemnify, defend and hold Purchaser, its affiliates save harmless Purchaser and its and their respective directors, managers, officers, employees, affiliates, agents, representatives advisors, representatives, stockholders and advisors assigns (collectively, the “Purchaser IndemniteesIndemnified Parties”) harmless from from, against and shall reimburse the applicable Purchaser Indemnitee for in respect of any and all Losses incurred or suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by SellerIndemnified Party arising out of, or non-fulfillment of any covenant or obligation of Sellerrelated to, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement following (each, a “Third Party Purchaser Claim”):
(a) any misrepresentation or breach of warranty made by the Seller in any Transaction Document or in any document, certificate or other instrument required to be delivered by the Seller under any Transaction Document;
(b) any breach or non fulfillment by the Seller when required to be performed of any covenant or agreement made or to be performed by the Seller in any Transaction Document or in any agreement or instrument entered in connection with any Transaction Document;
(c) any fraud or intentional misrepresentation with respect to, or intentional breach of, any Transaction Document by the Seller; and
(d) the Retained Liabilities. Except as set forth in Section 8.6 with respect to third party Actions, in the event of any Purchaser Claim, Purchaser shall notify Seller and such notice shall be in writing and shall describe with reasonable specificity the nature and amount of such Purchaser Claim (a “Purchaser Notice of Claim”). Upon receipt of such notice A delay on the part of a Third Purchaser Indemnified Party Claim, in giving Seller a Purchaser Notice of Claim shall have the right to assume the defense of such Third Party Claim using counsel of relieve Seller from its choice reasonably satisfactory obligations under this Section 8.1 only to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheldextent that Seller is materially prejudiced thereby. A Purchaser Indemnitee shall have Notice of Claim may be delivered at any time during the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of applicable survival period for such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this claim as set forth in Section 11.01 or any other provision 8.3 of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Osiris Therapeutics, Inc.), Asset Purchase Agreement (Nuvasive Inc)
Indemnification by Seller. (a) Subject to the limitations of Sections 9.01 and 9.05, Seller shall indemnifyindemnify in full, defend and hold Purchaserharmless Buyer, its affiliates and its and their respective officers, directors, managers, officers, employees, agentsagents and shareholders (collectively, representatives and advisors (the “Purchaser IndemniteesBuyer Indemnified Parties”) harmless from against any loss, Liability, deficiency, damage, expense or cost (including reasonable attorneys’ fees and shall reimburse expenses) (collectively, “Losses”), whether or not involving a third-party Claim (as defined in Section 9.04(a)) prior to the applicable Purchaser Indemnitee for expiration of the indemnification obligation of Seller hereunder, which the Buyer Indemnified Parties may suffer, sustain or become subject to, as a result of any Losses suffered or incurred by any Purchaser Indemnitee after of the Closing Date which result fromfollowing:
(ia) Any material any breach of a representation or warranty by Seller, or non-fulfillment inaccuracy in any of any covenant or obligation the representations and warranties of Seller, Seller contained in the Seller Documents or in any certificate delivered by or on behalf of Seller pursuant to this Agreement or the Assignment Agreement;
(iib) Any servicing act any breach of, or omission failure to perform, any agreement or covenant of Seller contained in any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage LoanSeller Documents;
(iiic) Any act, error any Claim or omission threatened Claim against Buyer Indemnified Parties that arises in connection with the actions or inactions of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from Assets or Assumed Liabilities prior to the Agency or in a shortfall of funds to pay the Current Excess Servicing SpreadClosing Date;
(vd) Any breach by Seller any Claim or threatened Claim against the Buyer Indemnified Parties for infringement, misuse, misappropriation, or relating to the ownership of the Asset Purchase Agreement; and
(vi) Litigationany intellectual property rights, proceedingsincluding, governmental investigationsbut not limited to, orderspatent, injunctions copyright, trademark, service xxxx, trade names, trade dress, trade secret, or decrees resulting from know-how rights, relating to any of the items described in Section 11.01(a)(i) – (v) aboveAssets or the Business or any component of the Assets or the Business;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of (e) any litigationformer or present employees, proceedingsofficers and/or managers of, governmental investigationsconsultants to, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claimindependent contractors to, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory holding any rights in or to the applicable Purchaser Indemnitee, but may not enter into Intellectual Property;
(f) any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent product liability Claims relating to the entry Assets and/or sales of a judgment and Business or enter into any settlement with respect component thereof prior to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or Closing; or
(g) any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountExcluded Liability.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Vascular Solutions Inc), Asset Purchase Agreement (Escalon Medical Corp)
Indemnification by Seller. (a) Subject to the provisions of this Article 11, Seller shall indemnify, defend and hold Purchaserharmless Buyer, its affiliates Affiliates and its and their the respective officers, directors, managers, officers, employees, agentsagents and representatives of Buyer and its Affiliates (each of whom may be an Indemnitee pursuant to this Article 11) (collectively, representatives and advisors (the “Purchaser Buyer Indemnitees”) harmless from and shall against, and pay and reimburse each such Buyer Indemnitee for, any and all Losses, whether or not any such Losses arise out of any Third Party Claim, directly or indirectly arising out of, from or in connection with:
(a) any breach of any representation or warranty made by Seller under this Agreement (including in the applicable Purchaser Indemnitee for case of any Third Party Claim any Losses suffered by such Buyer Indemnitee in the event that any third party unrelated to Buyer alleges facts that, if true, would constitute or incurred result in a breach by Seller of any Purchaser such representation or warranty);
(b) any default or breach of any covenant, obligation or agreement on the part of Seller under this Agreement (including in the case of any Third Party Claim any Losses suffered by such Buyer Indemnitee in the event that any third party unrelated to Buyer alleges facts that, if true, would constitute or result in a breach by Seller of any such covenant, obligation or agreement);
(c) any Excluded Asset;
(d) any Excluded Liability;
(e) any check or other instrument drawn on or deposited into a Branch Deposit account (i) on or prior to the Closing Date upon which a forgery (signature or endorsement) or alteration claim is asserted against Buyer or as to which a proper endorsement is lacking, or (ii) prior to or after the Closing Date which result from:
(i) Any material breach of that involves a representation check kiting scheme that was initiated on or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or prior to the Assignment AgreementClosing Date;
(iif) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related chargeback occurring after the Closing Date on a Deposit account to the origination extent that such chargeback exceeds the funds in the account on the date of such chargeback but solely to the extent that such chargeback resulted from a violation of Seller’s expedited funds availability policy in effect on the date such funds were deemed collected on the account (provided that Buyer shall reimburse Seller for any Mortgage Loan;sums so indemnified to the extent that Seller recoups any funds so charged back from subsequent deposits into the Deposit account so transferred); or
(iiig) Any act, error the ownership or omission of Seller in servicing any operation of the Mortgage Loans, Branches or their business and properties (including improper action the Acquired Assets and the Deposits) on or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect prior to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser IndemniteeClosing Date, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountexcluding all Assumed Liabilities.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (First Banks, Inc), Purchase and Assumption Agreement (Firstmerit Corp /Oh/)
Indemnification by Seller. (a) The Asset Seller agrees to and shall indemnifydefend, defend indemnify and hold Purchaser, its affiliates harmless Asset Buyer and its and their respective directors, managers, officersmembers, employees, agents, representatives and advisors its and their respective successors and assigns (collectively, the “Purchaser Indemnitees” Asset Buyer Indemnified Parties”) harmless from and shall reimburse against any and all losses, damages, claims, actions, lawsuits, demands, proceedings, assessments, judgments, deficiencies, costs, expenses (including without limitation, reasonable attorneys’ fees and expenses), and governmental actions of every kind, nature or description (collectively, “Losses”) which arise out of or relate to any of the applicable Purchaser Indemnitee for following: (a) the operation of the Business at any Losses suffered time on or incurred by any Purchaser Indemnitee after prior to the Closing Date which result from:
Date; (ib) Any material any breach of a representation any representation, warranty or warranty covenant made by Sellerthe Asset Seller in this Agreement; (c) any failure by the Asset Seller to materially perform, comply with or non-fulfillment observe any one of any covenant more of its covenants, agreement or obligation of Seller, obligations contained in this Agreement Agreement; (c) liability arising from a breach or error by Asset Seller in connection with the Assignment Agreement;
representations and warranties set forth in Section 5 and (iid) Any servicing act or omission any transferee liability for which the Asset Buyer Indemnified Parties become liable on account of any prior servicer relating to obligation of Asset Seller, including, but not limited to, any Mortgage Loan tax liability that the Asset Buyer assumes by law. For the purposes hereof, Asset Buyer for and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any on behalf of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Asset Indemnified Parties covenants and agrees with Asset Seller that results in a decrease in Servicing Agreements termination payments it will perform its own due to Seller diligence and research on the Acquired Assets and Asset Buyer shall be estopped from raising any claim for Losses with respect to matters that it inspected (or that a commercially reasonable party should have inspected) during the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Due Diligence Period. If there is any indemnification claim hereunder, Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser Buyer shall notify Seller promptly after receiving written cause notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims claim to be delivered to the Asset Seller provided that the failure to give such notice shall not affect the Asset Buyer Indemnified Parties’ right to indemnification hereunder. The Asset Seller shall defend such claim at their sole cost and expense with legal counsel chosen by Asset Seller (subject to indemnification under this Agreement (each, a “Third Party Claim”reasonable input from the Asset Buyer). Upon receipt of such notice of a Third Party Claim, Seller The Asset Buyer and its counsel shall have the right to assume participate in the defense of any such Third Party Claim using counsel claim at the Asset Buyer’s sole cost and expense. If notice is given and the Asset Seller fails to promptly assume or assert the defense of its choice reasonably satisfactory the claim in good faith, the claim may be defended, comprised or settled by the Asset Buyer without the Asset Seller’s consent and the Asset Seller shall remain liable under this Section 8. Notwithstanding any provision of this Section 8 to the applicable Purchaser Indemniteecontrary: (a) the Asset Buyer may retain control over the defense (at the cost of the Asset Seller) of any claim hereunder if such claim is for injunctive or other equitable relief; and/or (b) if in the reasonable opinion of the Asset Buyer there may be a conflict between the positions of the Asset Buyer and Asset Seller in conducting the defense of an action or that there may be legal defenses available to Asset Buyer different from or in addition to those which counsel for the Asset Seller would be able to raise, but may the Asset Buyer shall be entitled to maintain its own independent defense of such action and the reasonable fees and expenses of the Asset Buyer’s counsel shall be paid by the Asset Seller. Asset Seller cannot enter into any settlement settle a matter other than for dollar damages without the prior written consent of Asset Buyer. Further notwithstanding any provision of this Agreement to the contrary, in no event shall Asset Seller’s liability to the Asset Buyer Indemnified Parties, regardless of the cause or nature of the event giving rise to any such liability, exceed the total sum of the Escrow Cash except to the extent such claim or loss was caused by Seller’s fraudulent misrepresentation or gross or intentional negligence in which event Buyer shall be entitled to all remedies provided for under law or in equity. Unless otherwise provided herein, the limitation of liability set forth in the immediate preceding sentence shall be applicable Purchaser Indemniteeto direct damages only, which it being understood and agreed by the Asset Buyer Indemnified Parties that Asset Seller shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry responsible or liable for other types of a judgment or enter into any settlement with respect to the Third Party Claim damages, including, without the prior written consent of Sellerlimitation, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 consequential, special, incidental or any other provision types of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, damages even if Asset Seller was advised of the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure likelihood of same from the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountAsset Buyer Indemnified Parties.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ark Restaurants Corp), Asset Purchase Agreement (Ark Restaurants Corp)
Indemnification by Seller. (a) Seller hereby covenants and agrees with Buyer that, regardless of any investigation made at any time by or on behalf of Buyer or any information Buyer may have and regardless of any Closing of the purchase of the Purchased Assets hereunder, Seller shall indemnify, defend and hold Purchaser, its affiliates indemnify Buyer and its and their respective directors, managers, officers, employeesshareholders and affiliates, agentsand each of their successors and assigns (individually, representatives a “Buyer Indemnified Party”), and advisors hold them harmless from, against and in respect of any and all costs, losses, claims, liabilities, fines and penalties (the excluding interest which may be imposed in connection therewith and arbitration/court costs and reasonable attorneys fees and disbursements of counsel) (collectively, “Purchaser IndemniteesLosses”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result fromof them in connection with:
(i) Any material any breach of, with respect to or any inaccuracy in, any of a representation the representations, warranties, covenants or warranty agreements made by Seller, or non-fulfillment of any covenant or obligation of Seller, contained Seller in this Agreement or the Assignment Agreementany exhibit or schedule to this Agreement or any certificate, instrument or writing delivered in connection herewith;
(ii) Any servicing act any attempt (whether or omission not successful) by any person to cause or require a Buyer Indemnified Party to pay or discharge any debt, obligation, liability or commitment of Seller or Mobilss under any prior servicer relating Carrier Contract attributable to any Mortgage Loan state of facts existing or any event occurring after January 13, 2004 and any act at or omission of any party related prior to the origination of any Mortgage Loan;September 28, 2006; or
(iii) Any actany action, error suit, proceeding, compromise, settlement, assessment or omission judgment arising out of Seller in servicing or incidental to any of the Mortgage Loansmatters indemnified against in this Section 13(b); provided, including improper action or failure however, that Seller shall not be obligated to act when required to do so;
(ivindemnify a Buyer Indemnified Party and hold it harmless under this Section 13(b) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency any settlement of a claim to which Seller has not consented, which consent shall not unreasonably be withheld or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach delayed. If, by Seller reason of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from claim of any third person relating to any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims matters subject to indemnification under this Agreement (eachSection 13(b), a “Third Party Claim”). Upon receipt lien, attachment, garnishment or execution is placed upon any of such notice the property or assets of a Third Party Claimany Buyer Indemnified Party, Seller shall have also, promptly upon demand, furnish an indemnity bond sufficient to obtain the right to assume the defense prompt release of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemniteelien, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemniteeattachment, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment garnishment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountexecution.
Appears in 1 contract
Indemnification by Seller. (ai) In the event that Seller breaches any of its representations, warranties, or covenants contained in this Agreement, and provided that a Buyer Indemnified Party (as defined below) makes a written claim for indemnification against Seller within the survival period (if there is an applicable survival period pursuant to Section 8(a)), then Seller shall indemnify, defend and hold Purchaserindemnify Buyer, its affiliates and its Affiliates and their respective directors, managersofficers, officersequity holders, subsidiaries, employees, agents, agents and representatives and advisors (the each a “Purchaser IndemniteesBuyer Indemnified Party”) harmless from and shall reimburse against any Adverse Consequences the applicable Purchaser Indemnitee for Buyer Indemnified Parties may suffer (including any Losses suffered or incurred by any Purchaser Indemnitee Adverse Consequences the Buyer Indemnified Parties may suffer after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment end of any covenant applicable survival period) resulting from, arising out of, relating to or obligation of Seller, contained in this Agreement or caused by the Assignment Agreement;breach.
(ii) Any servicing act or omission In addition to the foregoing, Seller shall indemnify and hold harmless the Buyer Indemnified Parties from and against the entirety of any prior servicer Adverse Consequences the Buyer Indemnified Parties may suffer resulting from, arising out of, relating to any Mortgage Loan and any act or omission caused by:
(A) ownership or operation of any party related the Business or the Acquired Assets arising from or relating to the origination period on or prior to the Closing;
(B) any liabilities or obligations of any Mortgage Loan;Seller (other than the Assumed Liabilities), including the Excluded Liabilities and the Excess Payables; or
(C) fraud or intentional misrepresentation of Seller.
(iii) Any actIn addition to the foregoing, error Seller hereby releases and shall indemnify and hold harmless the Buyer Indemnified Parties from and against the entirety of any Adverse Consequences the Buyer Indemnified Parties or omission of the Seller in servicing Indemnified Parties may suffer resulting from, arising out of, relating to or caused by any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of Buyer under Section 7, including without limitation any rights of setoff claims against the Buyer Indemnified Parties or the Seller Indemnified Parties by trade creditors or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent unsecured creditors of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 1 contract
Indemnification by Seller. (a) Subject to the limitations set forth in SECTIONS 7.1 AND 7.4, Seller shall indemnifyhereby agrees, defend to indemnify and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) Buyer harmless from and shall reimburse the applicable Purchaser Indemnitee for against any Losses suffered and all claims, demands, suits, proceedings, judgments, losses, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") imposed upon or incurred by Buyer as a result of or in connection with any Purchaser Indemnitee after of the Closing Date which result fromfollowing:
(i) Any material inaccuracy or breach of a representation or warranty made by Seller, or non-fulfillment Seller in ARTICLE III of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;; or
(ii) Any servicing act The breach of, or omission of default in the performance by Seller of, any prior servicer relating covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or any Mortgage Loan and any act agreement or omission of any party related to the origination of any Mortgage Loaninstrument executed in connection herewith or pursuant hereto;
(iii) Any act, error or omission of Seller in servicing any The operation of the Mortgage LoansFacility prior to the Closing, including improper action or failure to act when required to do so;except the Environmental Liabilities and Health and Safety Liabilities expressly assumed by Buyer herein.
(ivb) Any exercise Promptly after receipt by Buyer of any rights notice of setoff an Action or other netting arrangements by the Agency against Seller that results in event giving rise to a decrease in Servicing Agreements termination payments due to Seller Buyer Claim with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject which Buyer is entitled to indemnification under this Agreement SECTION 7.2, Buyer shall notify (eachthe "Buyer Claim Notice") Seller in writing of the commencement of such Action or the assertion of such Buyer Claim; PROVIDED, a “Third Party Claim”HOWEVER, that failure to give such notice shall not affect the right to indemnification hereunder except to the extent of actual prejudice to Seller. Seller shall have the option, and shall notify Buyer in writing within ten business days after the date of the Buyer Claim Notice of its election, either: (A) to participate (at Seller's expense) in the defense of such Action or Buyer Claim (in which case the defense of such Action or Buyer Claim shall be controlled by Buyer) or (B) to take charge of and control the defense of such Action or Buyer Claim (at Seller's expense). Upon receipt If Seller elects to control the defense, it will not compromise or settle the Action or Buyer Claim if (X) the amount to be paid in settlement exceeds the Maximum Indemnity Amount or (Y) the settlement does not include a provision releasing Buyer from all liabilities with respect thereto. If Seller fails to notify Buyer of its election within the applicable response period, then such party shall be deemed to have elected not to control the defense of such notice Action or Buyer Claim. If Seller elects to assume the defense of a Third Party any Action or Buyer Claim, Seller Buyer shall have the right to assume employ separate counsel and participate in the defense of such Third Party Action or Buyer Claim, but the fees and expenses of such counsel shall be at the expense of Buyer unless: (1) the named parties in such Action or Buyer Claim using (including any impleaded parties) include both Buyer and an indemnifying party and Buyer shall have been advised by such counsel of its choice reasonably satisfactory that there may be one or more legal defenses available to it that are different from or additional to those available to the applicable Purchaser Indemniteeindemnifying party, but or (2) Buyer has reasonably determined that Losses that may not enter into any settlement without be incurred may exceed either individually, or when aggregated with other Buyer Claims, the prior written consent of Maximum Indemnity Amount (in which case, the applicable Purchaser Indemnitee, which indemnifying party shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select control the defense of such Action or Buyer Claim on behalf of Buyer, it being understood, however, that the indemnifying party shall not, in connection with such Action or Buyer Claim, be liable for the fees and expenses of more than one separate counsel firm of attorneys (in addition to any local counsel) and to otherwise separately defend itself at its own expense but that all such fees and expenses shall be reimbursed as they are incurred).
(c) If Seller does not consent to control the entry defense of a judgment any Action or enter into any settlement Buyer Claim, then Buyer may settle such Action or Buyer Claim with respect to the Third Party Claim without the prior written consent of Seller, which consent shall Seller (not to be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account).
Appears in 1 contract
Indemnification by Seller. (a) Seller shall Subject to the provisions of Section 3.5, Sellers jointly and severally hereby agree to indemnify, defend defend, and hold Purchaserharmless the Buyer, its affiliates parents, subsidiaries and its Affiliates and predecessors in interest, and their respective officers, directors and employees, from and against any and all Losses, whether asserted by a third party or otherwise that Buyer might suffer, incur or be subjected to by reason of any legal action, proceeding, arbitration or other claim, whether commenced or threatened, whether or not well grounded and by whomsoever concerned, based upon any breach of this Agreement, or any other act or omission by any Sellers, its Affiliates and predecessors in interest and their respective officers, directors, managers, officersagents, employees, agents, or representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for with respect to any Losses suffered Account or incurred by any Purchaser Indemnitee after party obligated on an Account prior to the Closing Date which result from:
Date, provided, however, that (i) Any material breach of the Buyer notifies Sellers within a representation or warranty by Seller, or non-fulfillment reasonable time of any covenant or obligation such Losses (provided that any failure to notify the Sellers within such reasonable period of Sellertime shall not affect the obligations of the Sellers to indemnify the Buyer hereunder unless the Sellers are prejudiced by such failure), contained in this Agreement or the Assignment Agreement;
(ii) Any servicing such Losses are not primarily attributable to any negligent act or omission by the Buyer, its parent, Affiliates, subsidiaries, transferees, contractors, agents or any of any prior servicer relating to any Mortgage Loan their employees or agent and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any the Buyer provides Sellers with information that is available to the Buyer and is reasonably necessary for Sellers to prosecute its defense of the Mortgage Loansaction. Notwithstanding the foregoing, including improper action or failure to act when required to do so;
(ivSellers are not responsible for any breach of the representation in Section 3.2(c) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency origination or predecessors in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion interest of any litigationAccount, proceedingsexcept to the extent that a Seller has any right to be indemnified, governmental investigations, orders, injunctions, decrees defended or held harmless for such matters. Sellers shall bear all expenses in connection with the defense and/or settlement of any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”)such claim or suit. Upon receipt of such notice of a Third Party Claim, Seller The Buyer shall have the right right, at its own expense, to assume participate in the defense of any claim against which it is indemnified and the defense of which has been assumed by the Sellers’ obligation or indemnity hereunder. Sellers, in the defense of any such Third Party Claim using counsel of its choice reasonably satisfactory to claim, except with the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser IndemniteeBuyer, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a any judgment or enter into any settlement with respect that either, (a) does not include, as an unconditional term, the grant by the claimant to the Third Party Claim without the prior written consent Buyer of Seller, which consent shall not be unreasonably withheld. Any exercise a release of all liabilities in respect of such claims, or (b) otherwise adversely affects the rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountBuyer.
Appears in 1 contract
Indemnification by Seller. (a) 14.1.1 Subject to the limitations set forth in Section 14.3, Seller shall agrees to indemnify, defend and hold harmless each of Purchaser, its affiliates Parent and its and any of their respective directorsmembers, managersshareholders, officers, directors, employees, agents, representatives and advisors affiliates, successors or assigns (the each, a “Purchaser IndemniteesIndemnitee”) harmless from and shall reimburse the applicable any loss, damage or expense (including reasonable attorneys’ fees but excluding any consequential, punitive, multiplied, exemplary or other special damages) (collectively, “Losses”) that a Purchaser Indemnitee may incur, suffer or become liable for any Losses suffered as a result of or incurred by any Purchaser Indemnitee after in connection with (a) the Closing Date which result from:
(i) Any material breach of a any representation or warranty by Sellerof Seller contained in this Agreement, including any Exhibit or non-fulfillment Schedule to this Agreement, occurring or developing during the period of survival set forth in Section 13; (b) the breach of any covenant or obligation of Seller, Seller contained in this Agreement or the Assignment Agreement;
other Transaction Documents; (iic) Any servicing act or omission any breach of any prior servicer covenant made by any Seller Party contained in Section 10.2, Section 10.3 or Section 10.4; or (d) any assertion against a Purchaser Indemnitee of any claim or liability constituting an Excluded Liability, including, without limitation, the assertion against a Purchaser Indemnitee by any Person of any obligation or liability relating to any Mortgage Loan and any act the Purchased Assets, the conduct of the Business by Seller, or omission the conduct of any party related Seller Party prior to the origination Closing Date, including, without limitation, Tax claims or liabilities. Purchaser, acting on behalf of any Mortgage Loan;
(iii) Any acta Purchaser Indemnitee, error or omission of will give Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving prompt written notice of any claim, suit or demand that Purchaser believes will give rise to indemnification by Seller under this section stating in reasonable detail the assertion nature and basis of such claim, suit or demand, provided, however, that, the failure to give such notice will not affect the obligations of Seller hereunder, except to the extent it is prejudiced by such failure.
14.1.2 Except as hereinafter provided and except where a conflict of interest between Seller and the Purchaser Indemnitee suggests separate counsel is appropriate, Seller will have the right to defend and to direct the defense against any such claim, suit or demand, in its name or in the name of the Purchaser Indemnitee at Seller’s expense and with outside counsel of Seller’s own choosing. Each Purchaser Indemnitee will, at Seller’s expense, cooperate reasonably in the defense of any litigationsuch claim, proceedingssuit or demand. If Seller, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, within a “Third Party Claim”). Upon receipt of such reasonable time after notice of a Third Party Claimclaim, fails to defend a Purchaser Indemnitee, the Purchaser Indemnitee will be entitled to undertake the defense, compromise or settlement of such claim at the expense of and for the account and risk of Seller shall have the subject to Seller’s right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory claim at any time prior to the applicable settlement, compromise or final determination thereof if the only issues remaining therein involve liability for, or the amount of, money damages to be assessed against the Purchaser Indemnitee, but Seller may not enter into any settlement not, without the prior written consent of the applicable Purchaser Indemnitee’s written consent, which shall consent will not be unreasonably withheld. A withheld or delayed, settle or compromise any claim or consent to any entry of judgment that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with release from all liability in respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountclaim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lecg Corp)
Indemnification by Seller. (a) Seller shall indemnifydefend, defend indemnify and hold Purchaser, its affiliates Buyer and its and their respective directors, managers, officers, employees, agents, representatives and advisors Affiliates (including the “Purchaser Indemnitees”Company after the Closing) harmless from and shall reimburse the applicable Purchaser Indemnitee for against and in respect of any Losses suffered and all actual losses, liabilities, damages, demands, claims, suits, proceedings, judgments, settlements, assessments, costs and expenses, including reasonable attorneys' fees, incurred directly by Buyer or incurred by any Purchaser Indemnitee after the Closing Date its Affiliates (hereinafter "Buyer Losses") which result from:
arise out of (i) Any material any breach of a representation any ------------ of the representations and warranties contained in Section 2 hereof or warranty by Sellerthe certificate delivered pursuant to Section 5.3(a), or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of its covenants in this Agreement but not of any Ancillary Agreement which shall be governed by the items described in Section 11.01(a)(i) – (v) above;
01terms thereof. Purchaser Buyer shall notify give Seller promptly after receiving prompt written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject claim which may give rise to indemnification any indemnity obligation under this Agreement (eachSection, a “Third Party Claim”). Upon receipt together with the estimated amount of such notice of a Third Party Claimclaim, and Seller shall have the right to assume the defense of any such Third Party Claim using claim through counsel of its choice own choosing, by so notifying Buyer within thirty (30) days of receipt of Buyer's written notice; provided, however, that Seller's counsel shall be reasonably -------- ------- satisfactory to Buyer. Failure to give prompt notice shall not affect the applicable Purchaser Indemniteeindemnification obligations hereunder in the absence of actual prejudice. If Buyer desires to participate in any such defense assumed by Seller, but it may not enter into do so at its sole cost and expense. If Seller declines or fails to assume any settlement such defense, it shall be liable for all reasonable costs and expenses of defending such claim incurred by Buyer, including reasonable fees and disbursements of counsel. Neither party shall, without the prior written consent of the applicable Purchaser Indemniteeother party, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have , settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry imposition of a judgment consent order, injunction or enter into decree which would restrict the future activity or conduct of the other party or any subsidiary or Affiliate thereof or if such settlement with respect to or compromise involves a finding or admission of any violation of law, or if such settlement or compromise does not include an unconditional release of the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise other party for any liability arising out of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 claim or demand or any other provision of this Agreement. With respect related claim or demand.
(b) The foregoing obligation to any Third Party Claim indemnify Buyer set forth in Section 8.2(a) shall be subject to indemnification each of the following limitations:
(i) No reimbursement for Buyer Losses asserted against Seller under this Agreement, the applicable Purchaser Indemnitee Section 8.2(a)(i) shall be required to cooperate in good faith with Seller to ensure unless and until the proper and adequate defense cumulative aggregate amount of such Third-Party Claim. For Buyer Losses equals or exceeds seven million five hundred thousand dollars ($7,500,000) (the avoidance "Threshold") and then only to the --------- extent that the cumulative aggregate amount of doubtBuyer Losses, Seller’s obligations as finally determined, exceeds the Threshold; provided that in calculating the Threshold -------- any Buyer Losses which individually total less than fifty thousand dollars ($50,000.00) each ("De Minimis Buyer Losses") shall be excluded in their ----------------------- entirety and Seller in any event shall have no liability hereunder to Buyer and its Affiliates for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountany such De Minimis Buyer Losses.
Appears in 1 contract
Samples: LLC Interest Sale and Purchase Agreement (Advanced Glassfiber Yarus LLC)
Indemnification by Seller. (a) From and after the Closing and subject to the terms hereof, Seller shall indemnifyagrees to defend, defend indemnify and hold Purchaser, its affiliates Purchaser and its and their respective shareholders, directors, managers, officers, employees, agents, representatives Affiliates and advisors Representatives (the “Purchaser IndemniteesIndemnified Parties”) harmless from and shall reimburse against any claim, liability, expense, loss or other damage (including reasonable fees and expenses relating to attorneys’ and the applicable Purchaser Indemnitee for any Losses suffered enforcement of the indemnification rights hereunder) (collectively, “Losses”) asserted against, imposed upon or incurred by any Purchaser Indemnitee after Indemnified Party by reason of, resulting from or arising out of:
(a) any breach by Seller of any representation or warranty made by Seller in this Agreement or any other document executed and delivered by Seller to Purchaser at Closing with respect to the transactions contemplated by this Agreement;
(b) any breach or non-performance by Seller of any covenant or agreement made by Seller in this Agreement or any other document executed and delivered by Seller to Purchaser at Closing with respect to the transactions contemplated by this Agreement;
(c) any imposition (including, but not limited to, imposition by operation of any bulk sales or other Law) or attempted imposition by a third party upon any of the Purchaser Indemnified Parties of any Liability of Seller which is not an Assumed Liability;
(d) any brokerage or finders’ fees arising out of the transaction contemplated hereby owing to any party engaged by Seller;
(e) any obligations of Seller under Section 5.13 hereof with respect to the Phase I Remediation;
(f) any Liability under any applicable federal, provincial or local Law resulting from or arising in connection with the employment by Seller of the Employees prior to the Closing Date which result from:except for obligations assumed by Purchaser hereunder including pursuant to Section 2.2(d) and Sections 5.2 through 5.6;
(g) any obligations of Seller under Sections 5.2 through 5.6 hereof;
(h) any Environmental Liability due to the condition of the Transferred Real Property on the Closing Date regardless of whether the condition was disclosed in this Agreement or any schedule hereto; and
(i) Any material any Liability resulting from Seller’s breach of a representation that certain Offre de contribution financiere non remboursable between Investissement Quebec and Rxxxx Xxxx Multifoods Inc. dated May 1, 2003; provided that such breach (i) is not caused by or warranty by Sellerrelated to Purchaser’s communications to Employees prior to the Closing, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
and (ii) Any servicing act or omission relates to actions of any Seller prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountClosing.
Appears in 1 contract
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Sale Date which result results from:
(ia) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;; and
(iib) Litigation, proceedings, governmental investigations, orders, injunctions or decrees, the basis for which occurred on or prior to the Sale Date, resulting from any of the items described in Section 10.01(a) above.
(c) Any prior servicing act or omission of Seller or any prior servicer relating to any Mortgage Loan that would constitute a branch of a representation and warranty by Seller under Article IV hereunder and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any actLoan that violated Applicable Laws; provided, error or omission however, that the applicable Purchaser Indemnitee has taken all reasonable and appropriate actions to mitigate any such losses, damages, deficiencies, claims, causes of Seller in servicing any of the Mortgage Loans, including improper action or expenses, which such failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by mitigation shall not relieve Seller of it’s indemnification obligations in this Section 10.01 but may affect the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any amount of the items described in Section 11.01(a)(i) – (v) above;
01such obligation. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 10.01 or any other provision of this Agreement. With respect to any Third Third-Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 1 contract
Samples: Mortgage Servicing Rights Purchase and Sale Agreement (Nationstar Mortgage LLC)
Indemnification by Seller. (a) On and after the Closing, Seller shall be responsible for, shall pay on a current basis, and shall indemnify, defend save, hold harmless, discharge and hold Purchaserrelease Buyer, all of its Affiliates, its affiliates and their successors and permitted assignees, and all of its and their respective stockholders, trustees, directors, managers, officers, employees, agentsagents and representatives (collectively, representatives and advisors (the “Purchaser IndemniteesBuyer Indemnified Parties”) harmless from and against any and all Damages incurred arising from, based upon, related to or associated with (a) the Excluded Assets or Excluded Liabilities; (b) the breach of, or failure to perform or satisfy, any of the representations, warranties and covenants of Seller set forth in this Agreement including the Ancillary Documents to which Seller is a party; and (c) any fraud or willful misconduct of Seller in connection with this Agreement, including the Ancillary Documents to which Seller is a party. Notwithstanding anything to the contrary in the foregoing, the right of any Buyer Indemnified Party to assert or otherwise claim indemnification under this Section 9.2 shall reimburse irrevocably expire and terminate (i) with respect to indemnity obligations arising out of, and/or relating to, the applicable Purchaser Indemnitee performance of the Retail Sales Contracts before the Closing Date, for each such Retail Sales Contract, on the first day of the sixth (6th) month after the expiration or termination of such Retail Sales Contract (without giving effect to any Losses suffered or incurred by any Purchaser Indemnitee renewal and/or other extension thereof occurring after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
Date); (ii) Any servicing act or omission of any prior servicer relating with respect to any Mortgage Loan and any act or omission of any party indemnity obligations related to Section 2.2, until the origination of any Mortgage Loan;
entire Purchase Price is paid; and (iii) Any actfor all other indemnity obligations of whatever nature, error or omission of Seller in servicing any the later of the Mortgage Loanssurvival period provided for in Section 9.1(a) above, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller first day of the Asset Purchase Agreementsixth (6th) month after the Closing Date; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from provided that the foregoing termination of Seller's indemnity obligations shall not affect any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of claims asserted by any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Buyer Indemnified Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to before the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent date of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment expiration or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accounttermination.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Connecticut Light & Power Co)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates indemnify Purchaser and its Affiliates (including, following the Closing the Acquired Companies) and each of their respective officers, directors, managers, officers, employees, agentsstockholders, agents and representatives and advisors (the “Purchaser Indemnitees”) against and hold them harmless from from, any and shall reimburse the applicable Purchaser Indemnitee for any Losses all Actions, Liabilities, Governmental Orders, Encumbrances, losses, damages, bonds, dues, assessments, fines, penalties, Taxes, fees, costs (including costs of investigation, defense and enforcement of this Agreement), expenses or amounts paid in settlement (including reasonable legal fees and expenses), whether or not involving a Third Party Claim (collectively, “Losses”), suffered or incurred by any such Purchaser Indemnitee after the Closing Date which result arising from:
(i) Any material any breach of, or inaccuracy in, any representation or warranty made by Seller in this Agreement (other than contained in Article II and Article III), any Ancillary Agreement or the Disclosure Schedule or certificate delivered pursuant to this Agreement (in each case, for purposes of determining the amount of Losses, such representation or warranty would be read if all qualifications as to materiality, including each reference to the defined term “Material Adverse Effect,” were deleted therefrom);
(ii) any breach or violation of any covenant or agreement of the Company pursuant to this Agreement or any Ancillary Agreement which survives the Closing;
(iii) any breach of, or inaccuracy in, any representation or warranty made by Seller contained in Article II of this Agreement, any Ancillary Agreement or any Disclosure Schedule Section or certificate delivered pursuant to this Agreement (in each case, for purposes of determining the amount of Losses, such representation or warranty would be read if all qualifications as to materiality, including each reference to the defined term “Material Adverse Effect,” were deleted therefrom);
(iv) any of the matters described in Exhibit 8.01(a)(iv); and
(v) any of the matters described in Exhibit 8.01(a)(v).
(b) Seller shall indemnify Purchaser Indemnitees against any Losses incurred by any such Purchaser Indemnitee arising from:
(i) any breach of, or inaccuracy in, any representation or warranty made by Seller contained in Article III of this Agreement, any Ancillary Agreement or any Disclosure Schedule Section or certificate delivered pursuant to this Agreement (in each case, for purposes of determining the amount of Losses, such representation or warranty would be read if all qualifications as to materiality, including each reference to the defined term “Material Adverse Effect,” were deleted therefrom); and
(ii) any breach or violation of any covenant or agreement of Seller pursuant to this Agreement or any Ancillary Agreement which survives the Closing.
(c) Notwithstanding anything contained herein to the contrary, Seller shall not be required to indemnify any Purchaser Indemnitee, and shall not have any liability:
(i) (A) under Section 8.01(a)(i), Section 8.01(a)(iii) and Section 8.01(b)(i) unless the aggregate amount of all Losses for which Seller would, but for this clause (i), be liable thereunder exceeds on a cumulative basis an amount equal to €100,000 (the “Basket”), at which point Seller will indemnify Purchaser Indemnitee for all such Losses, or (B) under Section 8.01(a)(v) unless with respect to any item listed on Exhibit 8.01(a)(v) the aggregate amount of all Losses for which Seller would, but for this clause (i), be liable thereunder exceeds on a cumulative basis with respect to such claim €10,000, at which point Seller will indemnify Purchaser Indemnitee for all such Losses;
(ii) under Section 8.01(a)(i), Section 8.01(a)(iii), Section 8.01(a)(v) and Section 8.01(b)(i) in excess of €5.0 million (the “Indemnity Cap”); and
(iii) to the extent the liability or obligation arises as a result of (x) any action taken or omitted to be taken by Purchaser or any of its Affiliates or (y) any breach of a representation or warranty by Sellerof Purchaser.
(d) The limitations under Sections 8.01(c)(i) and Section 8.01(c)(ii) shall not apply to (a) claims for indemnification in respect of breaches of, or non-fulfillment inaccuracies in, representations and warranties set forth in Sections 2.01 (Organization), 2.02 (Power and Authorization), 2.14 (Tax Matters), 2.04.(b)(iii) (Breach of any covenant or obligation Organizational Documents), 2.01(c) (Capitalization), 2.16 (Environmental Matters), 2.22 (No Brokers), 3.01 (Organization), 3.02 (Authority), 3.04(a) (No Breach of Organizational Documents of Seller), contained 3.03 (Capital Stock) or 3.05 (No Brokers) or (b) claims based upon fraud or intentional misrepresentation. Claims for indemnification pursuant to Sections 8.01(a)(ii), 8.01(a)(iv) and 8.01(b)(ii) are not subject to the monetary limitations set forth in Section 8.01(c).
(e) Absent fraud or intentional misrepresentation, or as otherwise specifically provided in this Agreement or Agreement, Purchaser acknowledges that its sole and exclusive remedy after the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller Closing with respect to the Mortgage Loans from the Agency or in a shortfall of funds any and all Claims relating to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee Acquisition and the other transactions contemplated hereby and thereby, the Company and its assets and liabilities shall be required pursuant to cooperate the indemnification provisions set forth in good faith with this Article VIII. In furtherance of the foregoing, each of Purchaser and the Company hereby waives, from and after the Closing, to the fullest extent permitted under any Legal Requirement, any and all rights and Claims (other than Claims of fraud or intentional misrepresentation) for Losses it may have against Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, or Seller’s obligations for Affiliates arising under, based upon or relating to this Agreement, any document or certificate delivered in connection herewith, any Legal Requirement, common law or otherwise (except pursuant to the indemnification provisions set forth in this Section 8.01).
(f) For those Claims or liabilities arising under Article VIII, Purchaser Indemnitees shall not be limited assert any rights under Article VIII first against the Seller’s interest in the Escrow Amount, and only against the Seller or the Parent directly to the extent that those Claims or liabilities arising under Article VIII exceed the funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountEscrow Amount.
Appears in 1 contract
Samples: Stock Purchase Agreement (Allied Defense Group Inc)
Indemnification by Seller. (a1) Seller shall indemnifydefend, defend indemnify and hold PurchaserBuyer, its affiliates and its and any Affiliate of Buyer or their respective current or future officers, directors, managers, officerscontrolling persons, employees, agents, representatives successors and advisors permitted assigns (the “Purchaser Indemnitees”collectively, "BUYER INDEMNITEES") harmless from and shall reimburse the applicable Purchaser Indemnitee for against and in respect of any Losses suffered or and all actual losses, liabilities, damages, claims, suits, proceedings, judgments, settlements and expenses, including reasonable attorneys' fees, incurred by any Purchaser such Buyer Indemnitee after the Closing Date (hereinafter "BUYER LOSSES") which result from:
arise out of or in connection with (i) Any material any breach of a representation or warranty by Seller, or non-fulfillment any of any covenant or obligation of Seller, the representations and warranties contained in this Agreement or the Assignment Agreement;
Article 3 hereof, (ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of its covenants in this Agreement, (iii) the items described Excluded Assets or (iv) the Excluded Liabilities. For the sole purpose of Section 9.2(a)(i), Seller shall be deemed to have made the representations and warranties in Section 11.01(a)(i) – (v) above;
01Article 3 without any qualifications or exceptions as to the presence or absence of, or resulting in, or being reasonably likely to result in, or not resulting in or having or being reasonably likely to have, as the case may be, a Material Adverse Effect. Purchaser Buyer shall notify give Seller promptly after receiving prompt written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject claim (which in any event shall be within thirty (30) days of receiving such claim) which may give rise to indemnification any indemnity obligation under this Agreement (eachSection 9.2(a), a “Third Party Claim”). Upon receipt together with the estimated amount of such notice of a Third Party Claimclaim, and Seller shall have the right to assume the defense of any such Third Party Claim using claim through counsel of its choice own choosing, by so notifying Buyer within thirty (30) days of receipt of Buyer's written notice; PROVIDED, HOWEVER, that Seller's counsel shall be reasonably satisfactory to Buyer. Failure to give prompt notice shall not affect the applicable Purchaser Indemniteeindemnification obligations hereunder in the absence of actual prejudice. If Buyer desires to participate in any such defense assumed by Seller, but it may not enter into do so at its sole cost and expense, and Seller and its counsel shall give Buyer and its counsel reasonable access to the relevant records and documents and employees of Seller in connection therewith. If Seller declines to assume any settlement such defense, it shall be liable for all reasonable costs and expenses of defending such claim incurred by Buyer, including reasonable fees and disbursements of counsel. Neither party shall, without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Sellerother party, which consent shall not be unreasonably withheld. Any exercise , settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the other party or any Affiliate thereof or if such settlement or compromise does not include an irrevocable and unconditional release of the other party for any liability arising out of such rights claim or demand or any related claim or demand.
(2) The foregoing obligation to indemnify Buyer Indemnitees set forth in Section 9.2(a) shall be subject to each of the following limitations:
(1) Seller's indemnification obligation for any breach of the representations and warranties set forth in Article 3 of this Agreement shall survive for the period specified in Section 9.1, and thereafter all such representations and warranties of Seller under this Agreement shall be extinguished. No claim for the recovery of such Buyer Losses may be asserted by a Purchaser Buyer Indemnitee shall not relieve Seller of its obligations and liabilities under this after the period specified in Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement9.1; PROVIDED, the applicable Purchaser Indemnitee shall be required to cooperate HOWEVER, that claims first asserted in good faith writing with Seller to ensure the proper and adequate defense of as much specificity as is reasonably available within such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees period shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.extinguished;
Appears in 1 contract
Indemnification by Seller. (a) Seller shall indemnify, defend hereby indemnifies and hold Purchaser, its affiliates holds each of Purchaser and its Affiliates and any and all of their respective partners, directors, managers, members, officers, employees, agentsagents (other than the Initial Purchaser) and controlling Persons (each, representatives and advisors (the a “Purchaser IndemniteesIndemnified Party”) harmless from and shall reimburse against, and will pay to each Purchaser Indemnified Party the applicable Purchaser Indemnitee for amount of, any and all Losses suffered (including attorneys’ fees) awarded against or incurred or suffered by such Purchaser Indemnified Party, whether or not involving a third party claim, demand, action or proceeding, arising out of (i) any breach of any representation, warranty or certification made by Seller in any of the Transaction Documents to which Seller is party or certificates given by Seller to Purchaser Indemnitee in writing pursuant to this Purchase and Sale Agreement or any other Transaction Document, (ii) any breach of or default under any covenant or agreement by Seller to Purchaser pursuant to any Transaction Document to which Seller is party or any of the Counterparty Agreements, (iii) any Excluded Liabilities and Obligations (unless such Excluded Liabilities and Obligations are due to Purchaser not complying with the confidentiality provisions set forth in the Counterparty Agreements), (iv) claims arising on or after the Closing Date which and asserted against a Purchaser Indemnified Party relating to the transactions contemplated in any Transaction Document or any of the Counterparty Agreements and (v) any fees, expenses, costs, liabilities or other amounts incurred or owed by Seller to any brokers, financial advisors or comparable other Persons retained or employed by it in connection with the transactions contemplated by this Purchase and Sale Agreement; provided, however, that the foregoing shall exclude any indemnification to any Purchaser Indemnified Party that (A) has the effect of imposing on Seller any recourse liability for Purchased Royalties because of the insolvency or other creditworthiness problems of Counterparty or the insufficiency of the Purchased Royalties, whether as a result from:
of the amount of cash flow arising from sales of the Licensed Products or otherwise, unless resulting from the failure of Seller to perform its obligations under this Purchase and Sale Agreement, (iB) Any material breach results from the bad faith, gross negligence or willful misconduct of a representation or warranty by Sellersuch Purchaser Indemnified Party, or non-fulfillment (C) results from the failure of any covenant Person other than Seller to perform any of its obligations under any of the Transaction Documents or obligation (D) results from Seller’s acts or omissions based upon the written instructions from any Purchaser Indemnified Party. Any amounts due to any Purchaser Indemnified Party hereunder shall be payable by Seller to such Purchaser Indemnified Party upon demand. In addition to the foregoing obligations of Seller, contained Seller agrees (a) to pay to Purchaser on demand all reasonable costs and expenses incurred by Purchaser in this Agreement connection with the enforcement of the Transaction Documents against Seller or its Affiliates, but not in connection with any enforcement against any other Person, (b) to indemnify Purchaser on an after-tax basis for any stamp and other taxes and fees payable or determined to be payable in connection with the Assignment Agreement;
(ii) Any servicing act or omission execution, delivery, filing and recording of the Transaction Documents, and to indemnify each Purchaser Indemnified Party on an after-tax basis in respect of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller liabilities with respect to the Mortgage Loans from the Agency such taxes and fees, and (c) to indemnify Purchaser on an after-tax basis for any U.S. federal, state or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees local or any third party claims subject to indemnification under this Agreement foreign income, franchise or other taxes imposed on income or assets (eachincluding any interest, a “Third Party Claim”). Upon receipt of penalties or reasonable accountant or counsel fees incurred in connection with such notice of a Third Party Claimtaxes) asserted against, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment withheld from or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure be withheld by Purchaser at any time that the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountNotes are outstanding.
Appears in 1 contract
Indemnification by Seller. (a) Seller shall indemnify, defend Marisa Chrixxxxx xxxll indemnify and hold Purchaser, its affiliates Purchaser and its and their respective directors, managers, officers, employeesstockholders, agents, representatives and advisors employees, the Members (collectively, the “"Purchaser Indemnitees”Indemnified Parties") harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by against, and agree promptly to defend any Purchaser Indemnitee after the Closing Date Indemnified Party from and reimburse any Purchaser Indemnified Party for, any and all Losses which any Purchaser Indemnified Party may at any time suffer or incur, or become subject to, as a result fromof or in connection with:
(i) Any material breach any failure by Seller to carry out, perform, satisfy and discharge any of a representation its covenants, agreements, undertakings, liabilities or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in obligations under this Agreement or under any of the Assignment other Transaction Documents delivered by Seller pursuant to this Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage LoanNon-Assumed Liabilities;
(iii) Any act, error or omission Liens against the Acquired Assets (other than Permitted Liens) which (x) arise out of Seller in servicing any obligations of Marisa Chrixxxxx xx its Affiliates (other than the Sellers) and (y) do not relate solely to the conduct of the Mortgage Loans, including improper action or failure to act when required to do soBusiness by Seller;
(iv) Any exercise any claim by a stockholder or creditor of any rights Marisa Chrixxxxx xxxsing out of setoff or other netting arrangements the sale of the Acquired Assets by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;Seller; or
(v) Any breach all liability or costs and that certain pending or threatened claim by Jamex Xxxxx, xxe Chapter 7 Trustee in bankruptcy of Gray Xxxes, Inc., d/b/a Shopxxxxx.xxx, xxeking to avoid alleged preferential transfers and payments in the amount set forth in the letter from such trustee dated December 19, 2000; provided that Purchaser shall provide Seller and its counsel with all reasonable assistance of Purchaser's personnel and access to its records and further provided that Purchaser shall reimburse Seller for one-half of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion amount of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect regard to the Third Party Claim without the prior written consent such claim , up to a maximum liability by Purchaser in such regard of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account$25,000.
Appears in 1 contract
Indemnification by Seller. Seller hereby agrees to defend, indemnify and hold harmless Buyer, Buyer Parent, their respective successors, assigns, directors, officers and Affiliates (except for G.W. Wyant and James A. Wyant) (collectively, the "Buyer Indemnxxxxx") xrom axx xxxxxxx xxy and all losses, deficiencies, liabilities, damages, assessments, judgments, costs and expenses, including attorneys' fees (both those incurred in connection with the defense or prosecution of the indemnifiable claim and those incurred in connection with the enforcement of this provision), including Environmental Liabilities and Costs, whether or not involving a third-party claim (collectively, "Buyer Losses"), caused by, resulting from or arising out of:
(a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach breaches of a representation or warranty by Seller, or non-fulfillment on the part of any covenant or obligation of Seller, Seller contained in this Agreement or the Assignment Agreementin any certificate or document delivered to Buyer or Buyer Parent pursuant hereto; and (ii) failures by Seller to perform or otherwise fulfill any undertaking or other agreement or obligation hereunder;
(iib) Any servicing act or omission any liability of any prior servicer relating to any Mortgage Loan and any act or omission of any party related Seller not specifically assumed by Buyer pursuant to the origination of any Mortgage LoanUndertaking;
(iiic) Any act, error or omission of Seller in servicing any liability for the failure of the Mortgage Loansparties to comply with the provisions of any bulk sales legislation or similar legislation which may be applicable to the transactions contemplated by this Agreement, including improper action provided that nothing herein shall derogate or failure be deemed to act when required to do soderogate from the obligations of Buyer under the Undertaking and the obligations of Buyer and Buyer Parent under Section 8.2;
(ivd) Any exercise the invalidity of any rights the Fairness Opinion as a result of setoff (i) the data, material and other information (excluding financial forecasts and projections) provided by or other netting arrangements by the Agency against on behalf of Seller that results in a decrease in Servicing Agreements termination payments due to Seller only with respect to Seller, its stockholders and the Mortgage Loans from Acquired Subsidiary and identified by Houlihan Lokey in the Agency Fairness Opinion as being relied upon by it xxxxx xxcxxxxxte or incorrect in any material respect or (ii) the financial forecasts and projections provided by or on behalf of Seller only with respect to Seller and the Acquired Subsidiary and identified by Houlihan Lokey in the Fairness Opinion as being reliex xxxx xx xx xxx xxxxxx been prepared in good faith and on a shortfall of funds to pay the Current Excess Servicing Spreadreasonable basis;
(vi) Any breach the data, material and other information (excluding financial forecasts and projections) provided by or on behalf of Seller only with respect to Seller, its stockholders and the Acquired Subsidiary and identified by Houlihan Lokey in the Fairness Opinion as being relied upon by it xxxxx ixxxxxlete or incorrect in any material respect or (ii) the financial forecasts and projections provided by or on behalf of Seller only with respect to Seller and the Acquired Subsidiary and identified by Houlihan Lokey in the Fairness Opinion as being relied upon by ix xxx xxvxxx been prepared in good faith and on a reasonable basis but, in each case, only to the extent Buyer Losses are incurred by the Buyer Indemnitees in connection with any claim of Houlihan Lokey relating thereto;
(f) claims ox xxx xhxxxxxlder of Buyer Parent that the information provided by or on behalf of Seller only with respect to Seller, its stockholders and the Acquired Subsidiary for inclusion in the Proxy Statement, at the date of mailing to shareholders of Buyer Parent and at the time of the Asset Purchase Agreementmeeting of shareholders of Buyer Parent contemplated by Section 5.8(a), contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(vig) Litigationany and all actions, suits, proceedings, governmental investigationsclaims or demands, orders, injunctions or decrees resulting from incident to any of the items described foregoing or such indemnification; provided, however, that if any claim, liability, demand, assessment, action, suit or proceeding shall be asserted against a Buyer Indemnitee in Section 11.01(a)(i) – respect of which a Buyer Indemnitee proposes to demand indemnification (v) above;
01. Purchaser "Buyer Indemnified Claims"), Buyer or such other Buyer Indemnitee shall notify Seller promptly after receiving written notice thereof, provided further, however, that the failure to so notify Seller shall not reduce or affect Seller's obligations with respect thereto except to the extent that Seller is materially prejudiced thereby. Subject to rights of the assertion of or duties to any litigation, proceedings, governmental investigations, orders, injunctions, decrees insurer or any other third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party ClaimPerson having liability therefor, Seller shall have the right promptly upon receipt of such notice to assume the defense control of the defense, compromise or settlement of any such Third Party Claim using Buyer Indemnified Claims (provided that any compromise or settlement must be reasonably approved by Buyer), including, at its own expense, employment of counsel of its choice reasonably satisfactory to the applicable Purchaser IndemniteeBuyer; provided, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemniteehowever, which shall not be unreasonably withheld. A Purchaser Indemnitee that if Seller shall have the exercised its right to select separate counsel assume such control, Buyer may, in its sole discretion and to otherwise separately defend itself at its own expense but shall not consent expense, employ counsel to the entry of a judgment or enter into represent it (in addition to counsel employed by Seller) in any settlement with respect to the Third Party Claim without the prior written consent of Sellersuch matter, which consent shall not be unreasonably withheld. Any exercise of and in such rights event counsel selected by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate with such counsel of Buyer in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubtdefense, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account compromise or the Current Spread Reserve Accountsettlement.
Appears in 1 contract
Indemnification by Seller. (a) Subject to the other provisions of this Article VIII, from and after the Closing Date, Seller shall indemnify, defend agrees to indemnify and hold Purchaserharmless Purchaser and Joint Obligor (collectively, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser IndemniteesIndemnitee”) harmless from and shall reimburse for the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after (which with respect to the Closing Date which result from:
Joint Obligor (i) Any material breach shall not include loss of profits (perjuicios), and (ii) shall be limited to direct damages, and (iii) shall in no event be duplicative with respect to any Losses claimed or that may be claimed by Purchaser under this Agreement) suffered by Purchaser Indemnitee as a result of, or arising out of or related to (as determined by a final arbitration resolution that admits no further recourse under the ICC Rules (laudo definitivo)): (i) any failure of any representation or warranty made by Sellerany of Seller in Article III or in any schedule, exhibit, certificate or non-fulfillment disclosure letter delivered pursuant to this Agreement to be true and correct on and as of the date of this Agreement or Closing Date as if made on such date (other than those made on a specified date, which shall be true and correct as of such specified date); (ii) any breach of any covenant or obligation of Seller, agreement by the Seller contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
; (iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required pay the Investment Price Adjustment to do so;
Purchaser pursuant to Section 2.4(e)(ii) in all cases as determined by a final arbitration resolution that admits no further recourse under the ICC Rules (laudo definitivo); and (iv) Any exercise of any rights of setoff action, claim or other netting arrangements Proceeding brought by the Agency against Seller Federal Telecommunications Institute (Instituto Federal de Telecomunicaciones) for the use of radio frequencies without holding the corresponding concession or authorization described in Schedule 3.10 (the “Frequencies Matters”); provided, that results if the relevant indemnification relates to any Losses suffered by the Purchaser Indemnitee arising out of or resulting from a breach of the representations and warranties regarding any Target Company contained in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency Article III or in a shortfall of funds any schedule, exhibit, certificate or disclosure letter delivered pursuant to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Seller’s obligation to indemnify and hold harmless will be limited to a percentage of the Losses equal to the Indemnifiable Percentage. Seller shall not seek to disregard its obligation to indemnify Purchaser Indemnitee shall be required by arguing that the corresponding Losses were not incurred directa e inmediatamente by Purchaser or Joint Obligor because a breach of the representations and warranties regarding any Target Company related only to cooperate in good faith with Seller to ensure such Target Company or the proper and adequate defense of applicable Losses were only suffered directa e inmediatamente by such Third-Party ClaimTarget Company. For the avoidance of doubt, Seller’s obligations to indemnify and hold harmless Purchaser pursuant to item (iv) above: (i) shall be subject to all of the limitations included in Article VIII (regardless of the fact that they would not result from a breach of Section 8.2(i)) and any payments made pursuant to this obligation shall be taken into account for Purchaser Indemnitees shall not purposes of the limitation set forth in 8.4(iii)), and (ii) will be limited to funds available in a percentage of the Third Party Controlled Current Spread Custodial Account or Losses equal to the Current Spread Reserve AccountIndemnifiable Percentage.
Appears in 1 contract
Samples: Stock Purchase and Subscription Agreement (Live Nation Entertainment, Inc.)
Indemnification by Seller. Subject to the limitations in Sections 9.1(c) and (a) d), Seller shall indemnify, defend and hold agrees to indemnify Purchaser, its affiliates and its and Affiliates, their respective directors, managers, officers, employees, agents, representatives employees and advisors agents and each of the successors and assigns of any of the foregoing (the “Purchaser IndemniteesIndemnified Parties”) against, and agrees to hold such Purchaser Indemnified Parties harmless from from, all losses, costs, damages, liabilities, claims, demands, judgments, fines, settlements, fees and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered expenses, whether governmental or non-governmental (including reasonable fees and expenses of counsel and reasonable expenses of investigation) (collectively, “Losses”), incurred by any Purchaser Indemnitee after the Closing Date which result resulting from:
: (i) Any material breach any inaccuracy of a any representation or warranty made by SellerSeller in Article III of this Agreement, the Seller Bring Down Certificate or non-fulfillment in the Ancillary Agreements; (ii) any breach of any covenant or obligation agreement on the part of SellerSeller under this Agreement; and (iii) any Retained Liabilities. The amount that Seller is or may be required to pay to any Purchaser Indemnified Party pursuant to this Section 9.1(a) shall be (A) reduced (including retroactively) by (y) any insurance proceeds or other amounts actually recovered by or on behalf of such Purchaser Indemnified Party in reduction of the related Loss, contained (net of any Tax detriment suffered by that Purchaser Indemnified Party with respect to such proceeds or amounts) and (z) any Tax benefit that such Purchaser Indemnified Party actually realizes as a result of the incurrence of Losses for which indemnification is sought and (B) increased (including retroactively) by any Tax detriment that Purchaser Indemnified Party actually suffers as a result of the receipt or accrual of indemnity payments hereunder. If a Purchaser Indemnified Party shall have received the payment required by this Agreement from Seller in respect of any Loss and shall subsequently actually receive insurance proceeds in respect of such Loss, then such Purchaser Indemnified Party shall pay to Seller a sum equal to the amount of such insurance proceeds actually received. Purchaser agrees that indemnification pursuant to this Article IX, subject to all limitations on such indemnification set forth in this Agreement, shall be the sole and exclusive remedy and means of recovery by Purchaser against Seller or any of its Affiliates with respect to any claim or action seeking damages or any other form of monetary relief brought by Purchaser; provided, that notwithstanding the foregoing, Purchaser shall retain the right to seek equitable and injunctive relief as a remedy in respect of violations of Sections 5.2(c), 5.2(d), 5.7(a), 5.8 and 5.13. The rights to indemnification set forth in this Section 9.1(a) shall not be affected by (i) any investigation conducted by or on behalf of Purchaser or any knowledge acquired (or capable of being acquired) by Purchaser, whether before or after the date of this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any actClosing Date, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from inaccuracy or noncompliance with any representation, warranty, covenant or obligation which is the Agency subject of indemnification hereunder, or in a shortfall of funds to pay the Current Excess Servicing Spread;
(vii) Any breach any waiver by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory closing condition relating to the applicable Purchaser Indemnitee, but may not enter into accuracy of any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel representations and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account warranties or the Current Spread Reserve Accountperformance of or compliance with agreements and covenants.
Appears in 1 contract
Indemnification by Seller. (a) Subject to the Tax Matters Agreement, and Sections 8.01(b), 8.03, 8.04, 8.06, 8.07 and 10.01, Seller shall indemnify, defend and hold Purchaser, its affiliates harmless Acquiror and its Affiliates (including, without limitation, each of the Companies) and their respective directorsRepresentatives (collectively, managersthe "Acquiror Indemnified Parties") against, officersand reimburse each Acquiror Indemnified Party for, employeesall Losses that such Acquiror Indemnified Party may at any time suffer or incur, agentsor become subject to, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered as a result of or incurred by any Purchaser Indemnitee after the Closing Date which result fromin connection with:
(i) Any material any inaccuracy or breach of a any representation or warranty made by Seller, or non-fulfillment of any covenant or obligation of Seller, contained Seller in this Agreement or in the Assignment certificate referred to in Section 6.02(a)(iii) (other than any inaccuracy of any representation or warranty made by Seller in Section 3.19, which is covered by the Tax Matters Agreement);
(ii) Any servicing act any failure by Seller to perform or omission comply with any of any prior servicer relating to any Mortgage Loan and any act its covenants or omission of any party related to the origination of any Mortgage Loanagreements contained in this Agreement;
(iii) Any actany Environmental Claim relating to Acquired Real Property Assets or the Acquired Personal Property Assets arising out of actions, error omissions, events or omission of Seller in servicing facts occurring on or prior to the applicable Closing Date or to the treatment, storage, recycling or Release at any of the Mortgage Loansproperty to which Hazardous Material was transported from any Acquired Real Property Asset on or prior to applicable Closing Date, including improper action or failure to act when required to do sothe matters described in Schedule 3.11;
(iv) Any exercise any Third Party Claim arising out of any rights of setoff actions, omissions, events or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due facts occurring on or prior to Seller with respect applicable Closing Date relating to the Mortgage Loans from assets (including the Agency Acquired Personal Property Assets), properties (including the Acquired Real Property Assets) or business of Seller and its Affiliates (including the Companies), including the Actions and matters described in a shortfall of funds to pay the Current Excess Servicing SpreadSchedules 3.08 and 3.24(e);
(v) Any breach by Seller of the Asset Purchase Agreementany Excluded Assets and any Excluded Liabilities; and
(vi) Litigationany fees and expenses payable to attorneys, proceedingsconsultants or accountants retained or hired by or on behalf of Seller, governmental investigationsthe Companies and their respective Affiliates and Representatives in connection with the transactions contemplated by the Transaction Agreements.
(b) Notwithstanding any other provision to the contrary, ordersSeller shall not be required to indemnify, injunctions defend or decrees resulting from hold harmless any Acquiror Indemnified Party against, or reimburse any Acquiror Indemnified Party for:
(i) any Losses pursuant to Section 8.01(a)(i) (other than Losses arising solely as a result of or in connection with the inaccuracy or breach of any representation or warranty made by Seller in Sections 3.01, 3.02, 3.03 or 3.21, as to which this Section 8.01(b) shall not apply) with respect to any claim for inaccuracy or breach of representation if (1) any officer of Acquiror obtained actual knowledge on or before the date of the items described in Section 11.01(a)(iOriginal Stock Purchase Agreement that such representation was not true and correct or (2) – any officer of Acquiror obtained actual knowledge (vwhether during due diligence, by notice from Seller, or otherwise) above;
01. Purchaser shall notify Seller promptly that such representation was not true and correct after receiving written notice the date of the assertion Original Stock Purchase Agreement but before the applicable Closing Date, unless on or before the applicable Closing Date (x) Acquiror shall have notified Seller in writing, providing reasonable detail, of any litigation, proceedings, governmental investigations, orders, injunctions, decrees such inaccuracy or any third party claims subject breach and (y) Seller shall have agreed prior to indemnification under the applicable Closing that Acquiror shall not be obligated to close the transactions contemplated by this Agreement (eachit being understood that if Acquiror thereafter elects not to so close, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller this Agreement shall automatically terminate and no party hereto shall have the right to assume the defense xxx any other party hereto or any Releasee for damages and/or specific performance of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemniteethis Agreement); provided, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee that Seller shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry burden of a judgment or enter into any settlement proof with respect to clauses (1) and (2) above; or
(ii) any Losses pursuant to Section 8.01(a)(i) and (iv) with respect to any claim (or series of related claims arising from the Third Party Claim without same underlying facts, events or circumstances), (A) unless such claim (or series of related claims arising from the prior written consent same underlying facts, events or circumstances) involves Losses in excess of Seller$25,000 and (B) until the aggregate amount of all Losses of the Acquiror Indemnified Parties exceeds $650,000, after which consent Seller shall be liable for all Losses of the Acquiror Indemnified Parties, including such $650,000; provided, however, that this clause (ii) shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect apply to any Third Party Claim subject relating to or arising out of the operation of the senior living business conducted by Seller and its Affiliates and including, prior to the applicable Closing Date, by the Companies (the "Seller Operations").
(c) The cumulative aggregate indemnification obligation of Seller under Sections 8.01(a)(i), 8.01(a)(iii) and 8.01(a)(iv) shall in no event exceed $25,000,000 in the aggregate; provided, however, that the foregoing limitation shall not apply to any Third Party Claim relating to or arising out of the Seller Operations.
(d) For purposes of this Article VIII and for purposes of determining whether Acquiror Indemnified Parties are entitled to indemnification under from Seller pursuant to Sections 8.01(a)(i) and 8.01(b) hereof, any breach of or inaccuracy in any representation or warranty (other than any representation or warranty contained in Sections 3.06, 3.07 and 3.18 and the first sentence of Section 3.14, as to which this Agreement, the applicable Purchaser Indemnitee Section 8.01(d) shall not apply) of Seller shall be required determined without regard to cooperate any materiality qualifications set forth in good faith with Seller such representation or warranty, and all references to ensure the proper terms "material," "materially," "materiality," "Material Adverse Effect" or any similar terms shall be ignored for purposes of determining whether such representation or warranty was true and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account correct when made or the Current Spread Reserve Accountdeemed made.
Appears in 1 contract
Samples: Stock Purchase Agreement (Brookdale Senior Living Inc.)
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Mortgage Servicing Rights Purchase and Sale Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i10.01(a)(i) – (v) above;
01; provided, however, that the applicable Purchaser Indemnitee has taken all commercially reasonable and appropriate actions to mitigate any such losses, damages, deficiencies, claims, causes of action or expenses as reasonably requested by Seller, which such failure of mitigation shall not relieve Seller of its indemnification obligations in this Section 10.01 but may affect the amount of such obligation; and further provided, that any Losses incurred by the Purchaser Indemnitee pursuant to any attempt to mitigate any such losses, damages, deficiencies, claims, causes of action or expenses shall be reimbursed by Seller as part of its indemnification obligations in this Section 10.01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 10.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 1 contract
Samples: Current Excess Servicing Spread Acquisition Agreement (Newcastle Investment Corp)
Indemnification by Seller. (a) Seller shall indemnify, defend agrees subsequent to the Closing to indemnify and hold PurchaserBuyer and its shareholders, its subsidiaries and affiliates and its and their respective persons serving as officers, directors, managerspartners or employees thereof (individually a "Buyer Indemnified Party" and collectively, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”"Buyer Indemnified Parties") harmless from and shall reimburse against any damages, actions, proceedings, demands, liabilities, diminution in value, losses, taxes, fines, penalties, costs, claims and expenses (including, without limitation, reasonable fees of counsel) of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the applicable Purchaser Indemnitee for any Losses foregoing) which may be sustained or suffered or incurred by any Purchaser Indemnitee after of them arising out of or based upon any of the Closing Date which result fromfollowing matters:
(ia) Any material breach of fraud, dishonesty, intentional misrepresentation or a representation deliberate or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any willful breach by Seller of any of its representations, warranties, agreements or covenants under this Agreement or any other agreement, certificate, schedule or exhibit executed by Seller or Seller Guarantor and delivered pursuant hereto;
(b) any other breach of any representation or warranty of Seller under this Agreement or any other agreement, certificate, schedule or exhibit executed by Seller or Seller Guarantor and delivered pursuant hereto, or by reason of any claim, action or proceeding asserted or instituted growing out of any matter or thing constituting a breach of such representations or warranties;
(c) any breach of any agreement or covenant of Seller under this Agreement or any other agreement, certificate, schedule or exhibit executed by Seller and delivered pursuant hereto, or by reason of any claim, action or proceeding asserted or instituted growing out of any matter or thing constituting a breach of such covenants;
(d) any failure by Seller to perform and discharge any of the Asset Purchase AgreementExcluded Liabilities, including its obligations pursuant to Sections 2.2(d) and (f) hereof;
(e) any liability of Seller for Taxes (as defined in Section 3.6 hereof), whether levied or imposed in the United Kingdom or elsewhere, of whatever nature and whether past, present or, solely to the extent arising from the Subject Assets or from the conduct of the Business, including the Excluded Liabilities, by Seller prior to the Closing Date, future, and all penalties, charges, costs and interest relating to the same and any penalties chargeable for non-compliance by Seller with any statutory provisions or regulations in connection therewith; and
(vif) Litigation, proceedings, governmental investigations, orders, injunctions any liability (whether arising before or decrees resulting from after the Closing Date) relating to any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion environmental or worker health and safety matter of any litigationkind or nature whatsoever, proceedingsknown or unknown, governmental investigationsasserted or unasserted, ordersthat arises in connection with or on the basis of events, injunctionsacts, decrees or any third party claims subject to indemnification under this Agreement (eachomissions, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claimconditions, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision state of this Agreement. With respect facts occurring or existing prior to any Third Party Claim subject to indemnification under this Agreement, or on the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountClosing Date.
Appears in 1 contract
Indemnification by Seller. (a) Seller shall indemnify, defend agrees to indemnify and hold Purchaser, its affiliates each of Purchaser and its Affiliates and any and all of their respective partners, directors, managers, members, officers, employees, agentsagents and controlling persons (each, representatives and advisors (the a “Purchaser IndemniteesIndemnified Party”) harmless from and shall reimburse against, and will pay to each Purchaser Indemnified Party the applicable Purchaser Indemnitee for amount of, any and all Losses suffered (including reasonable attorneys’ fees) awarded against or incurred or suffered by such Purchaser Indemnified Party, arising out of, or involving any Purchaser Indemnitee claim, demand, action or proceeding arising out of (a) any breach of any representation, warranty or certification made by Seller in, or pursuant to, any of the Transaction Documents (including certificates or other written documentation delivered thereunder), (b) any breach or default by Seller in respect of any covenant or agreement made by Seller in any Transaction Document or under the License Agreements, (c) any Excluded Liabilities and Obligations, (d) Third Party claims arising on or after the Closing Date which result from:
and asserted against a Purchaser Indemnified Party relating to the transactions contemplated in any Transaction Document or a License Agreement, (e) any fees, expenses, costs, liabilities or other amounts incurred or owed by Seller to any brokers, financial advisors or comparable other Persons retained or employed by it in connection with the transactions contemplated by the Transaction Documents and (f) acts or omissions of Purchaser or any of its Affiliates based upon written instructions from any Seller Indemnified Party (unless Purchaser is otherwise liable for such Losses pursuant to the terms of this Agreement); provided, however, that the foregoing shall exclude any indemnification to any Purchaser Indemnified Party (i) Any material breach that results from the gross negligence or willful misconduct of a representation such Purchaser Indemnified Party or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) to the extent resulting from acts or omissions of Seller or any of its Affiliates based upon written instructions from any Purchaser Indemnified Party (unless Seller is otherwise liable for such Losses pursuant to the terms of this Agreement). Any servicing act or omission of any prior servicer relating amounts due to any Mortgage Loan and any act or omission of any party related Purchaser Indemnified Party hereunder shall be payable by Seller to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller such Purchaser Indemnified Party upon demand. Other than with respect to the Mortgage Loans from the Agency or in a shortfall breach of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) LitigationSections [*], proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification fraud, willful misconduct, intentional misrepresentation, or intentional breach, in no event shall the maximum aggregate amount of Losses that may be recovered by the Purchaser Indemnified Parties under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right pursuant to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement7.1 be greater than [*]. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.37
Appears in 1 contract
Indemnification by Seller. From and after Closing, Seller shall indemnify and hold harmless Buyer and its Affiliates and each of their respective officers, directors, equity owners, employees and agents (collectively, “Buyer Indemnitees”) from and against, and will pay to the Buyer Indemnitees the monetary value of, any and all Liabilities, losses, damages, claims, costs and expenses, interest, awards, Judgments or penalties (including legal fees and expenses but in all cases, excluding (unless awarded against a Buyer Indemnitee in a Third Party Claim): (a) Seller shall indemnifyconsequential damages, defend including without limitation, lost profits and hold Purchaserdiminution of value; (b) special, its affiliates exemplary, punitive damages; and its and their respective directors(c) damages calculated as a multiple of company revenue, managers, officers, employees, agents, representatives and advisors profits or similar metrics) (the a “Purchaser IndemniteesLoss”) harmless from and shall reimburse incurred or suffered by the applicable Purchaser Indemnitee for any Losses suffered Buyer Indemnitees, directly or incurred indirectly, arising out of, resulting from, or caused by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material any inaccuracy or misrepresentation in or breach of any of the representations or warranties made by a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained Seller in this Agreement Agreement, the Seller Disclosure Schedule or the Assignment any Transaction Agreement;
; (ii) Any servicing act any nonfulfillment, nonperformance or omission other breach of any prior servicer relating to any Mortgage Loan and any act of the covenants or omission agreements of any party related to a Seller contained in the origination of any Mortgage Loan;
Purchase Agreements; (iii) Any act, error any Excluded Liability; or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff Proceedings, demands or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees assessments resulting from any of the items described matters set forth in Section 11.01(a)(iclauses (i) – through (viii) above;
01. Purchaser shall notify Seller promptly after receiving written notice For purposes of this Section 7.2, the assertion amount of any litigationLosses associated with any inaccuracy in, proceedingsor breach of any representation or warranty or other statement, governmental investigationsor nonfulfillment, ordersnonperformance or other breach of any covenant or agreement by the Seller will be determined without regard for any materiality, injunctions, decrees “Material Adverse Effect” or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountsimilar qualification.
Appears in 1 contract
Samples: Asset Purchase Agreement (Verb Technology Company, Inc.)
Indemnification by Seller. (a) Seller shall release, indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) Buyer Indemnitees harmless from and shall reimburse the applicable Purchaser Indemnitee for against any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result fromand all Claims (individually a “Buyer’s Indemnified Claim” and collectively “Buyer’s Indemnified Claims”) arising out of:
(i) Any material misrepresentation or breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, Seller contained in this Agreement or in the Assignment Agreementcertificate delivered on the Execution Date;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission failure of Seller in servicing to perform any of the Mortgage Loans, including improper action its covenants or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results obligations contained in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase this Agreement; and
(viiii) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from The Excluded Assets.
(b) In the event of any breach by Seller of the items described Seller’s representation and warranty in Section 11.01(a)(i8.01(h) – (vand in addition to Buyer Indemnitees’ rights to indemnity under Section 14.03(a) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification otherwise under this Agreement or applicable law:
(eachi) at Buyer’s election in its sole discretion, a Buyer may cause the Asset Companies to transfer and assign the Mineral Asset that is subject to the investigation or the enforcement, clean-up, removal, remediation, mitigation, or other claim or proceeding referenced in Section 8.01(h), or that is subject to the material environmental permit not held by Asset Companies or the proceeding pending to revoke an environmental permit referenced in Section 8.01(h)(ii) (the “Third Party ClaimAffected Mineral Asset”). Upon receipt of such notice of a Third Party Claim, to Seller or its designee and Seller shall have accept such transfer and assignment, and
(ii) Seller shall indemnify Buyer Indemnitees from and against any violation of Environmental Laws, whether arising out of or relating to any release of materials into the right to assume environment or protection of human health, safety, natural resources or the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemniteeenvironment, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision environmental condition of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreementthe Affected Mineral Asset WHETHER KNOWN OR UNKNOWN, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such ThirdWHETHER NOW EXISTING OR ARISING IN THE FUTURE, CONTINGENT OR OTHERWISE, WHICH BUYER MIGHT NOW OR SUBSEQUENTLY MAY HAVE AGAINST SELLER INDEMNITEES, SOLELY TO THE EXTENT ARISING DIRECTLY FROM THE BREACH OF THE SPECIFIC REPRESENTATION IN SCHEDULE 8.01(h), INCLUDING WITHOUT LIMITATION CLAIMS ARISING OUT OF OR INCIDENT TO ENVIRONMENTAL LAWS, ENVIRONMENTAL LIABILITIES, THE RELEASE OF MATERIALS INTO THE ENVIRONMENT OR PROTECTION OF HUMAN HEALTH, SAFETY, NATURAL RESOURCES OR THE ENVIRONMENT, INCLUDING, WITHOUT LIMITATION, RIGHTS TO CONTRIBUTION UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980, AS AMENDED, REGARDLESS OF THE SOLE OR CONCURRENT NEGLIGENT ACTS OR OMISSIONS OR STRICT LIABILITY OF ANY BUYER INDEMNITEES OR ANY OTHER LEGAL FAULT OF THE BUYER INDEMNITEES (INCLUDING PRE-Party Claim. For the avoidance of doubtEXISTING DEFECTS OR OTHER CONDITIONS OF SUCH MINERAL ASSETS); PROVIDED, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountHOWEVER, IN THE EVENT OF THE NECESSITY TO REMEDIATE OR OTHERWISE CURE AN ENVIRONMENTAL DEFECT RELATED TO AN AFFECTED MINERAL ASSET, THE OBLIGATION OF THE SELLER SHALL BE LIMITED TO THAT AMOUNT NECESSARY TO REMEDIATE OR OTHERWISE CURE SUCH ENVIRONMENTAL DEFECT IN THE MOST COST-EFFECTIVE MANNER REASONABLY AVAILABLE AND CONSISTENT WITH COMMON INDUSTRY PRACTICES.
Appears in 1 contract
Indemnification by Seller. (a) Subject to the limitations set forth in this Section 9, from and after the JV Closing, Seller and EPCOS Germany, on a joint and several basis, shall indemnify, defend indemnify and hold Purchaserharmless JV Holding Singapore, its affiliates and its the JV Subsidiaries, the Purchaser Group and their respective directors, managers, officers, employees, agents, representatives Affiliates and advisors Representatives (individually a “Purchaser Indemnified Person” and collectively the “Purchaser IndemniteesIndemnified Persons”) harmless from and shall reimburse the applicable Purchaser Indemnitee for against, without duplication, any Losses suffered and all losses, costs, damages, fees, diminution in value, re-engineering costs, liabilities, costs of investigation, Taxes and expenses, including costs and expenses arising from claims, demands, actions, causes of action and settlements, including reasonable and documented fees and expenses of lawyers, experts and other professionals (collectively, “Damages”), resulting from or incurred by any Purchaser Indemnitee after the Closing Date which result fromarising out of:
(i) Any material breach the failure of a any representation or warranty made by Seller, or non-fulfillment Seller in Section 3 to be true and correct as of any covenant or obligation the date of Seller, contained in this Agreement and as of the JV Closing as if such representation or warranty was made again as of the Assignment AgreementJV Closing (except for such representations and warranties that speak specifically as of the date hereof or as of another date, which shall be true and correct as of such date);
(ii) Any servicing act any breach or omission nonfulfillment of any prior servicer relating covenant or agreement made by Seller, any other Seller Group member or the Additional Seller Group Company in this Agreement (other than the covenants and agreements in Section 5.3), the Acquired IP License Agreement, the Retained IP License Agreement, the Agreement Regarding Amendment to any Mortgage Loan Intercompany License Agreements, the Patent Transfer Agreement, the Austria Termination and any act Assignment Agreement, the Termination and Assignment Agreements or omission of any party related to the origination of any Mortgage LoanTransitional Trademark License Agreement;
(iii) Any actany Liabilities relating to the Retained Liabilities irrespective as to when such Liability is due for payment, error or omission the ownership or operation of Seller in servicing any Excluded Assets, including those Liabilities of JV Holding Singapore or any New JV Subsidiary which under this Agreement or the applicable Restructuring Agreement would qualify as a Retained Liability, but for the fact that any such Liability did not arise prior to the effective time of the Mortgage Loanstransfer of Acquired Assets and assumption of the Assumed Liabilities in such agreement, including improper action or failure to act when required to do sobut arose in the period between such effective time and the JV Closing;
(iv) Any exercise of any rights of setoff or other netting arrangements adjustment amount payable by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due pursuant to Seller with respect Section 2.13(f) to the Mortgage Loans extent not paid within the time period required in such Section (it being understood that such payment shall be made by release to Purchaser of such amount from the Agency or in a shortfall of funds Holdback Amount pursuant to pay the Current Excess Servicing Spreadsuch Section);
(v) Any any Pre-Existing Environmental Liabilities;
(vi) any breach of any representation or warranty (other than a breach covered by clause (vii) below, which shall be subject to such clause) made by any Seller Group member or the Additional Seller Group Company under the Retained IP License Agreement (provided, for the avoidance of doubt, that the indemnification provided under this clause (vii) (A) shall no longer apply upon the occurrence of an event set forth in the second sentence of Section 8.1(b) of the Retained IP License Agreement, in which case the alternative liability provisions set forth in Section 8.1(b) of the Retained IP License Agreement shall apply as provided therein, and (B) is without prejudice to the provisions of Section 8.1(a) of the Retained IP License Agreement);
(vii) any breach of any representation or warranty made by any Seller Group member or the Additional Seller Group Company in Section 6.1(a) of the Retained IP License Agreement or in Section 9.1 of the Transitional Trademark License Agreement, which representations and warranties shall be deemed to constitute a Fundamental Representation for all purposes under this Agreement, including this Section 9 (provided, for the avoidance of doubt, that such representations and warranties shall not be deemed to constitute Fundamental Representations and the indemnification provided under this clause (vii) shall no longer apply upon the occurrence of an event set forth in the third sentence of Section 6.1(a) of the Retained IP License Agreement or the second sentence of Section 9.1 of the Transitional Trademark License Agreement, in which case the alternative liability provisions set forth in the Retained IP License Agreement or the Transitional Trademark License Agreement, as applicable, shall apply as provided therein);
(viii) any breach of any representation or warranty made by Seller in the Transitional Trademark License Agreement (provided, for the avoidance of doubt, that the indemnification provided under this clause (viii) (A) shall no longer apply upon the occurrence of an event set forth in the third sentence of Section 10.1 of the Asset Purchase Transitional Trademark License Agreement, in which case the alternative liability provisions set forth in Section 10.1 of the Transitional Trademark License Agreement shall apply as provided therein, and (B) is without prejudice to the provisions of Section 10.1 of the Transitional Trademark License Agreement);
(ix) any breach of any representation or warranty, or any breach or nonfulfillment of any covenant or agreement, of EPCOS Germany, TDK Europe or German Newco under the IT Carve Out Agreement or Section 5.3 of this Agreement; and
(vix) Litigationthe matters set forth on Schedule 9.1(a)(x). For purposes of this Section 9, proceedingsany materiality, governmental investigations, orders, injunctions Seller Material Adverse Effect or decrees resulting from other similar qualification contained in or otherwise applicable to any representation or warranty of the items described Seller in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, shall be taken into account in determining whether a “Third Party Claim”). Upon receipt breach of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemniteerepresentation or warranty exists, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A taken into account in determining the amount of Damages payable to a Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement Indemnified Person with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountbreach.
Appears in 1 contract
Indemnification by Seller. (a) Seller shall indemnify, defend hold harmless and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (indemnify the “Purchaser Indemnitees”) harmless Indemnitees from and against, and shall compensate and reimburse each of the applicable Purchaser Indemnitee for Indemnitees for, any Losses Damages that are suffered or incurred by any of the Purchaser Indemnitee after Indemnitees or to which any of the Closing Date which Purchaser Indemnitees may otherwise become subject at any time to the extent such Damages arise from or result fromfrom any Proceeding commenced or threatened to be commenced by any Third Person (a “Third Person Claim”) arising from any of the following:
(i) Any any material breach Breach by Seller of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, Seller contained in this Agreement or the Assignment Security Interest Agreement or any certificates or other documents delivered pursuant to this Agreement or the material Breach by Seller of any covenant, condition, agreement, or obligation of Seller contained in this Agreement or the Security Interest Agreement or any certificates, notices or other documents delivered pursuant to this Agreement or the Security Interest Agreement;
(ii) Any servicing act the negligence, recklessness, or omission of any prior servicer relating to any Mortgage Loan and any act intentional wrongful acts or omission of any party omissions related to this Agreement or the origination Security Interest Agreement of Seller or its Affiliates or any Mortgage Loanof their respective directors, employees or agents;
(iii) Any act, error any product liability claims or omission claims of Seller in servicing infringement or misappropriation of any intellectual property rights of any Third Persons with respect to Products arising out of Purchaser’s purchase of the Mortgage Loans, including improper action Purchased Receivables or failure to act when required to do soother transactions contemplated by this Agreement;
(iv) Any exercise any Proceeding initiated against Purchaser by a Third Person based on a material Breach by Seller of any rights of setoff the Material Licenses or other netting arrangements by the Agency against material agreements between Seller that results in a decrease in Servicing Agreements termination payments due and Third Persons relating to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing SpreadProducts;
(v) Any breach by any Seller Event of the Asset Purchase Agreement; andDefault;
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described assignment by Seller as provided in Section 11.01(a)(i9.3(b)(iii); or
(vii) – (v) above;
01. any Proceeding initiated against Purchaser shall notify Seller promptly after receiving written notice of the assertion by a Third Person based on Seller’s Breach or alleged Breach of any litigationrepresentation, proceedingswarranty, governmental investigationscovenant, orderscondition, injunctions, decrees agreement or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification obligation under this Agreement, the applicable Security Interest Agreement, the Purchaser Indemnitee shall be required Xxxx of Sale or any certificates, notices or financing statements delivered pursuant to cooperate in good faith with Seller to ensure this Agreement, the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account Security Interest Agreement or the Current Spread Reserve AccountPurchaser Xxxx of Sale or any matter of a type referred to in subsections (i) through (v); provided, that Damages arising from or resulting under the foregoing subsection (i) through (vi) are not subject to indemnification by Purchaser under Section 8.1(b).
Appears in 1 contract
Indemnification by Seller. From and after the Closing, and subject to the provisions of this Article VIII, Seller shall pay and indemnify fully, hold harmless and defend Purchaser, Purchaser’s affiliates, members, managers, principals, attorneys, accountants, agents and employees, and their respective heirs, successors and assigns (each a “Purchaser Indemnified Party”) from and against any and all Proceedings, charges, complaints, Judgments, decrees, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, Taxes, Liens, losses, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Damages”), arising out of or relating to: (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered inaccuracy in or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a any representation or warranty by Seller, of Seller or non-fulfillment Shareholder contained in this Agreement; (b) any breach of any covenant or obligation agreement of Seller, Seller or Shareholder contained in this Agreement Agreement; (c) any Excluded Liabilities; (d) any claim, suit or the Assignment Agreement;
(ii) Any servicing act or omission of any action made against Purchaser that accrues prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of Closing; and (e) Seller’s failure to obtain any Mortgage Loan;
(iii) Any actRequired Consent prior to the Closing. Notwithstanding anything in this Article VIII or this Agreement to the contrary, error or omission of Seller if the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article VIII, and if such dispute is resolved in servicing any the favor of the Mortgage LoansIndemnifying Party, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Indemnifying Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section or Section 8.02 or of the Indemnifying party’s participation therein at the Imdemnified Party’s request, and the Indemnified Party shall have reimburse the right to select separate counsel Indemnifying Party in full for the costs and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise expenses of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountlitigation.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Peregrine Systems Inc)
Indemnification by Seller. (a) Seller shall Subject to the limitations herein, Sellers agree to jointly and severally indemnify, defend and hold Purchaserharmless Parent, its affiliates and its Buyer, each Company, their respective Affiliates (other than Sellers) and their respective officers, directors, managers, officers, employees, agents, representatives representatives, members, partners and advisors stockholders (collectively, the “Buyer Indemnified Parties”) against any Loss arising from, relating to or constituting (i) any breach or inaccuracy in any of the representations and warranties contained in Article III or IV or any instrument or any closing certificate delivered by or on behalf of any Seller pursuant to this Agreement, (ii) any breach of any of the covenants or other agreements of any Seller contained in this Agreement or (iii) the Retained Liabilities (clauses (i) through (iii), collectively “Buyer Losses”).
(b) Subject to Section 8.1(c), Sellers will be liable to the Buyer Indemnified Parties for Buyer Losses resulting from breaches or inaccuracies of any of the representations and warranties contained in Article IV (other than the Fundamental Representations) (“Buyer Basket Losses”) only if the sum of the aggregate amount of all Buyer Basket Losses exceeds $558,000 (the “Purchaser IndemniteesBuyer Basket Amount”), in which case Sellers will be liable for the aggregate amount of all Buyer Basket Losses; provided that this Section 8.1(b) harmless shall not apply to any Buyer Losses arising from fraud or intentional misrepresentation.
(c) Notwithstanding anything to the contrary in this Agreement, except for Buyer Losses arising from fraud or intentional misrepresentation on the part of any Seller, (i) in no event shall Sellers be liable for aggregate Buyer Basket Losses in excess of $8,370,000 and (ii) in no event shall reimburse Sellers be liable for aggregate Buyer Losses resulting from breaches or inaccuracies of any of the representations and warranties contained in Article III or Article IV in excess of the Purchase Price.
(d) The Buyer Indemnified Parties shall not be entitled to recover any Buyer Losses related to any matter arising under one provision of this Agreement to the extent that the Buyer Indemnified Parties has already recovered Buyer Losses with respect to such matter pursuant to other provisions of this Agreement.
(e) If a Buyer Indemnified Party has a claim for indemnification under this Section 8.1, Buyer will deliver to Seller Representative one or more written notices of Buyer Losses (i) in the case of a breach or inaccuracy of Article IV (other than the Fundamental Representations), prior to the General Survival Date, (ii) in the case of a breach or inaccuracy of the representations and warranties contained in Section 4.11 or Section 4.19, at any time prior to 60 days following the expiration of the applicable Purchaser Indemnitee statute of limitations, (iii) in the case of a breach or inaccuracy of the representations and warranties contained in Section 4.17, at any time prior to the later of (1) the date that is 18 months immediately following the Closing and (2) the General Survival Date, and (iv) in the case of any Retained Liabilities or a breach or inaccuracy of the Fundamental Representations (other than the representations and warranties contained in Section 4.11, Section 4.17 or Section 4.19) or any breach of any covenant or other agreement of a Seller contained in this Agreement, at any time. Sellers will have no liability for any Losses suffered or incurred a Buyer Loss under this Section 8.1 unless the written notice required by the preceding sentence for such Buyer Loss is given by the applicable deadline. Any written notice will state in reasonable detail the basis for such Buyer Loss to the extent then known by Buyer and the nature of the Buyer Loss for which indemnification is sought, and the amount of the Buyer Loss claimed, if then known by any Purchaser Indemnitee of the Buyer Indemnified Parties. If such written notice (or an amended notice) states the amount of the Buyer Loss claimed and Seller Representative notifies Buyer that Sellers do not dispute the claim described in such notice or fail to notify Buyer within 20 Business Days after delivery of such notice by Buyer whether Sellers disputes the Closing Date claim described in such notice, the Buyer Loss in the amount specified in Buyer’s notice will be deemed admitted by Sellers, and Sellers will indemnify the applicable Buyer Indemnified Parties for such Buyer Loss in accordance with Section 8.1(f). If Seller Representative has timely disputed the liability of Sellers with respect to such claim, Seller Representative and Buyer will proceed in good faith to negotiate a resolution of such dispute for at least 30 days after delivery of Seller Representative’s notice after which result fromthe Parties may pursue any remedies available to them under this Agreement. If a written notice does not state the amount of the Buyer Loss claimed, such omission will not preclude any Buyer Indemnified Party from recovering from Sellers the amount of the Buyer Loss with respect to the claim described in such notice if any such amount is promptly provided after it is determined. In order to assert its right to indemnification under this Article VIII, Buyer will not be required to provide any notice except as provided in this Section 8.1(e).
(f) Following a Seller Liability Determination with respect to a Buyer Loss, Buyer (on behalf of the applicable Buyer Indemnified Party), shall recover such Buyer Loss in the following manner:
(i) Any material breach If the amount of such Buyer Loss is less than or equal to the Escrow Fund Value, then Buyer shall receive a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained distribution from the Escrow Fund in this Agreement or an amount equal to such Buyer Loss in accordance with the Assignment Escrow Agreement;.
(ii) Any servicing act or omission If the amount of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to such Buyer Loss is greater than the origination of any Mortgage Loan;
Escrow Fund Value, then (iii1) Any act, error or omission of Seller in servicing any Buyer shall receive a distribution of the Mortgage Loansentire amount remaining in the Escrow Fund (if any) in accordance with the Escrow Agreement; and (2) Sellers shall either, including improper action at Seller Representative’s sole discretion, (A) pay to Buyer an amount in cash equal to (i) such Buyer Loss minus (ii) the Escrow Fund Value, or failure (B) surrender to act when required to do so;
(ivParent in accordance with Section 2.1(i) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
Subscription Agreement the number of Parent Shares with an aggregate Parent Shares Value equal to (viC) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of such Buyer Loss minus (D) the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountEscrow Fund Value.
Appears in 1 contract
Indemnification by Seller. (a) Seller shall indemnify, defend indemnify and hold Purchaser, its affiliates harmless Buyer and its Affiliates and each of their respective officers, directors, managers, officers, employees, agents, representatives successors and advisors assigns (the “Purchaser Buyer Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses and all Liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including legal costs and expenses and interest on the amount of any Loss from the date suffered or incurred by any Purchaser Indemnitee after the Closing Date which result fromincurred) (a “Loss”) arising out of, resulting from or caused by:
(ia) Any material any inaccuracy or misrepresentation in or breach of a representation any of the representations or warranty warranties made by Seller, or non-fulfillment of any covenant or obligation of Seller, Seller contained in Article 10 of this Agreement or the Assignment Agreement;
(iib) Any servicing act or omission any breach of any prior servicer relating to any Mortgage Loan and any act of the covenants or omission agreements of any party related to the origination of any Mortgage LoanSeller contained in this Agreement;
(c) any employment claim (including any claim by any Seller employee or consultant) based on or arising out of (i) the transactions contemplated by this Agreement, including their employment by or consulting with Seller, (ii) the actual or constructive termination of such employment or consulting relationship or (iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do soEmployee Excluded Liabilities;
(ivd) Any exercise all Liabilities of Seller or any rights of setoff its Affiliates arising out of or other netting arrangements by resulting from the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect conduct of the Business prior to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing SpreadClosing;
(ve) Any breach by Seller of the Asset Purchase AgreementSeller’s obligations for Transfer Taxes under Section 4.7 and Straddle Period Taxes under Section 4.8(c);
(f) all Excluded Liabilities; and
(vig) Litigation, proceedings, governmental investigations, orders, injunctions any failure to comply with any applicable “bulk sales” law or decrees resulting from regulation in connection with the transactions contemplated by this Agreement. Any claim under Section 12.2(a) for any inaccuracy or misrepresentation in or breach of any of the items described representations or warranties made by Seller, must be made on or prior to the thirtieth (30th) day following the expiration of the warranty period set forth in Section 11.01(a)(i12.1. Seller’s aggregate liability for claims made under Section 12.2(a) – or (vb) above;
01. Purchaser shall notify Seller promptly after receiving written notice of not exceed (i) the assertion of any litigationFirst Closing Payment, proceedingsif the Second Closing does not occur or (ii) the total Purchase Price, governmental investigationsif the Second Closing does occur; and provided, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, that Seller shall have no liability for claims made solely for breaches of representations and warranties under Section 12.2(a) until the right to assume the defense aggregate amount of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemniteeall claims made under Section 12.2(a) by Buyer Indemnitees exceeds Seventy Five Thousand United States dollars (US$75,000.00), but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, at which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee xxxx Xxxxxx shall be required to cooperate in good faith with Seller to ensure liable for the proper and adequate defense entire amount of all such Third-Party Claimclaims. For Notwithstanding the avoidance of doubtforegoing, Seller’s obligations for Purchaser to indemnify Buyer Indemnitees under this Section 12.2 shall not be limited to funds available in time or amount in the Third Party Controlled Current Spread Custodial Account case of Seller’s fraud or the Current Spread Reserve Accountknowing misrepresentation or with respect to Excluded Liabilities.
Appears in 1 contract
Samples: Purchase Agreement (Exar Corp)
Indemnification by Seller. (a) Seller From and after the Closing Date, SELLER shall indemnify, hold harmless, and defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless BUYER from and shall reimburse against all claims, losses, liabilities, demands and obligations, including without limitation reasonable attorneys' fees and expenses, which BUYER may receive, suffer or incur in connection with (i) any actions, suits, claims, demands or proceedings commenced prior to the applicable Purchaser Indemnitee for Closing Date (other than proceedings to prevent or limit the consummation of the Acquisition) relating to operations at the Offices and/or the Deposit Liabilities or Office Loans of the Offices or (ii) any Losses suffered actions, suits, claims, demands or incurred by any Purchaser Indemnitee proceedings commenced on or after the Closing Date which result from:
to the extent the same relate to operations at the Offices, the Assets, the Deposit Liabilities or Office Loans prior to the Closing Date. The obligations of SELLER under this Section 8.3 shall be contingent upon (a) SELLER being indemnified by Banc One for any obligations arising under this Section 8.3 and (b) BUYER giving SELLER written notice (i) Any material breach of a representation receipt by BUYER of any process and/or pleadings in or warranty by Sellerrelating to any actions, suits, or non-fulfillment proceedings of any covenant or obligation of Seller, contained the kinds described in this Agreement or the Assignment Agreement;
Section 8.3, including copies thereof, and (ii) Any servicing act or omission of the assertion of any prior servicer claim or demand relating to any Mortgage Loan the operation of the Offices, the Assets, the Deposit Liabilities or Office Loans prior to the Closing, including, to the extent known to BUYER, the identity of the person(s) or entity(ies) asserting such claim or making such demand and any act or omission the nature thereof, and including copies of any party related correspondence or other writings relating thereto, provided, however, that the failure to give timely notice by BUYER hereunder shall not relieve SELLER of its obligations under this Section 8.3 unless SELLER has been materially damaged by such failure to give notice. The rights of BUYER under this section shall not apply to any suits, judgments, demands, setoffs, or other claims arising directly or indirectly in conjunction with the Office Loans or other Assets transferred in accordance with this Agreement except (i) claims for personal injury arising from injuries occurring at the Offices prior to the origination Closing, or (ii) claims relating to the operation of the Offices prior to the Closing Date which relate to the Assets or Office Loans. All notices required by the preceding sentence shall be given within fifteen (15) days of the receipt by BUYER of any Mortgage Loan;
(iii) Any act, error such process or omission of Seller in servicing pleadings or any of the Mortgage Loans, including improper action oral or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees such claims or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”)demands. Upon receipt of such notice of a Third Party Claim, Seller SELLER shall have the right to assume take over BUYER's defense in any such actions, suits or proceedings through counsel selected by SELLER, to compromise and/or settle the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without same (with the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of SellerBUYER, which consent shall not unreasonably be unreasonably withheld) and to prosecute any available appeals or reviews of any adverse judgment or ruling that may be entered therein. Any exercise The covenants and obligations of such rights by a Purchaser Indemnitee SELLER hereunder shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, survive the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountClosing Date.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Peoples Bancorp Inc)
Indemnification by Seller. (a) Seller shall indemnify, defend agrees to indemnify and hold Purchaser, its affiliates harmless Purchaser and its and their respective officers, directors, managers, officers, employees, agents, attorneys, advisors, representatives and advisors Affiliates, and their respective heirs, legal representatives, successors and assigns (collectively, the “"Purchaser Indemnitees”) harmless "), from and against, and shall pay or reimburse Purchaser Indemnitees for, any and all losses, liabilities, damages (including incidental and consequential damages), diminution in value, obligations, claims, proceedings, fines, deficiencies and expenses (including reasonable attorneys' and accountants' fees and disbursements incurred in the applicable Purchaser Indemnitee for investigation or defense of any Losses suffered of the foregoing or incurred by any Purchaser Indemnitee after in the Closing Date which result enforcement or assertion of their indemnity rights hereunder), whether or not involving a third party claim (collectively, the "Losses"), arising out of, resulting from, or in connection with:
(ia) Any material inaccuracy of any representation or breach of a representation any warranty made by Seller in this Agreement or warranty in any Other Seller Agreement (including any allegations by Sellerany third Person that, if true, would mean that Seller has breached any of its representations or non-fulfillment of warranties);
(b) Any failure by Seller to perform or comply with any covenant or obligation of Seller, contained in this Agreement or in any Other Seller Agreement (including any allegations by any third Person that, if true, would mean that Seller has failed to perform or comply with any of its or his covenants or obligations);
(c) Any debt, liability or obligation of Seller not expressly assumed by Purchaser pursuant to this Agreement or with respect to assets of Seller not purchased by Purchaser pursuant to this Agreement (including, without limitation, any such liability of Seller that becomes a liability of Purchaser under any applicable bulk sales law, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law);
(d) Any act, omission, event, state of facts or other condition which occurred or existed on or prior to the Assignment Closing Date, whether or not then known, except to the extent expressly assumed by Purchaser pursuant to the terms of this Agreement or any Other Purchaser Agreement;
(iie) Any servicing act federal, state or omission local Taxes of any prior servicer relating kind whatsoever, including interest and penalties thereon, which may at any time be asserted or assessed with respect to any Mortgage Loan and any act events occurring, or omission tax periods ending, on or before the Closing Date (regardless of whether the possibility of the assertion or assessment of any party related such tax liability shall have been disclosed to Purchaser at or prior to the origination of any Mortgage LoanClosing);
(iiif) Any act, error broker's or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff finder's fee or other netting arrangements by commission resulting from any services alleged to have been rendered to or at the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to request of Seller with respect to the Mortgage Loans from the Agency this Agreement or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller any of the Asset Purchase transactions contemplated by this Agreement; and
(vig) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any The assignment of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject Shares to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountAgent.
Appears in 1 contract
Indemnification by Seller. (a) Seller shall indemnifySubject to Section 7.3, defend Parent and Seller, jointly and severally, will indemnify and hold Purchaser, Buyer and each of its affiliates and its and their respective directors, managers, officers, members, employees, agents, representatives and advisors agents (the collectively “Purchaser IndemniteesBuyer Parties”) harmless from against any and shall reimburse the applicable Purchaser Indemnitee for all losses, liabilities, damages, costs, penalties, actions, notices of violation, and notices of liability and against any Losses suffered claims, deficiencies, judgments, awards, decrees, costs and expenses in respect thereof (including, without limitation, amounts paid in settlement and reasonable costs of investigation and legal expenses but specifically excluding any consequential and punitive damages), suffered, sustained, incurred or incurred paid or required to be paid by any Purchaser Indemnitee after the Closing Date which result from:
Buyer Party arising out of or resulting from (i) Any material breach the inaccuracy of a any representation or warranty by Sellercontained in Article III hereof, or non-fulfillment the breach of any covenant of Parent and/ or obligation Seller contained herein, (ii) any Retained Liability, or (iii) any fraud on the part of Seller, Parent or Seller (hereinafter referred to collectively as “Buyer Losses” and individually as a “Buyer Loss”) Notwithstanding anything to the contrary contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into no liability under any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this AgreementAgreement for any Buyer Losses to the extent that such Buyer Losses result solely from or arise solely out of actions taken by Buyer or its Affiliates after the Closing Date. With respect Buyer shall take all reasonable steps to mitigate any Buyer Losses upon and after having Knowledge of any event which Buyer expects to give rise to any Third Party Claim subject Buyer Losses; provided, however, that the failure to take such steps shall not affect any Buyer Party’s right to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accounthereunder.
Appears in 1 contract
Samples: Asset Sale and Purchase Agreement (Wolverine Tube Inc)
Indemnification by Seller. (a) From and after the Closing, subject to the limitations in Sections 10.1(b) and (c), Seller shall indemnify, defend agrees to indemnify and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless each Buyer Group Member from and shall reimburse the applicable Purchaser Indemnitee for against any and all Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result such Buyer Group Member in connection with or arising from:
(i) Any material any breach of a representation any warranty or warranty by Seller, or non-fulfillment the inaccuracy of any covenant or obligation representation of Seller, Seller contained in Article IV of this Agreement or the Assignment Agreement;
(ii) Any servicing act any breach by Seller or omission Company of, or failure by Seller or Company to perform, any of any prior servicer relating to any Mortgage Loan and any act their respective covenants or omission of any party related to the origination of any Mortgage Loanobligations contained in this Agreement;
(iii) Any actany Taxes imposed upon or payable by the Company or any Subsidiary for any Taxable Period, error or omission portion of Seller in servicing any of Straddle Period, ending on or prior to the Mortgage Loans, including improper action or failure to act when required to do soClosing Date;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect workers compensation claims relating to the Mortgage Loans from pre-Closing period, to the Agency or in a shortfall of funds to pay extent that those aggregate self-insured workers compensation claims exceed the Current Excess Servicing SpreadWC Reserve;
(v) Any breach by Seller health insurance claims relating to the pre-Closing period, to the extent that those aggregate self-insured health insurance claims exceed of the Asset Purchase AgreementSelf Insurance Reserve; and
(vi) Litigationany settlement, proceedingsadjustment, governmental investigationsdisallowance, ordersoverpayment, injunctions set off against future payments or decrees resulting reimbursements, or recoupment (collectively, an “Adjustment”), arising from or relating to (i) any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of cost report, claim or similar billing statement filed with any litigation, proceedings, governmental investigations, orders, injunctions, decrees Government Program or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of Payor for any period ending on or before the Closing Date or for a billing period straddling the Closing Date, including any such notice of a Third Party Claimcost report, Seller shall have claim or billing statement filed after the right to assume the defense of Closing Date for such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemniteeprior periods (provided, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For for the avoidance of doubt, that Seller will not be liable for or indemnify any Buyer Group Member for an Adjustment to the extent such Adjustment relates to periods after the Closing), (ii) any demand for return of all or part of payments made in any period on or before the Closing Date by any Government Program or Third Party Payor, whether by the Government Program or Third Party Payor or a contractor (including any Medicare administrative contractor, Medicare program safeguard contractor, Medicare recovery audit contractor, or Medicaid recovery audit contractor) acting on behalf of a Government Program or Third Party Payor, (iii) medical malpractice claims relating to or arising out of the operation of the Business prior to the Closing Date, and (iv) all expenses (including reasonably attorneys’ fees) arising out of or relating to audits, investigations, assessments or claims by any Governmental Program or Third Party Payor or contractor acting on behalf of a Government Program or third Party Payor and relating to any period ending on or before the Closing Date or for a billing period straddling the Closing Date;
(vii) actions arising out of or associated with the Grand Jury Subpoena served on SunCrest Healthcare of Middle TN, LLC or associated healthcare regulatory or compliance issues;
(viii) any change in control, severance or related or similar obligations payable to Xxxxx Xxxx, Xxxxx Xxxxxxx, Xxx Xxxxxxxx or Xxxxx Xxxxxxxx;
(ix) any claims made by, or obligations or liabilities to, current or past equity holders of Seller’s , the Company or its Subsidiaries;
(x) the formation, operation or termination of any 401(k) plan sponsored by Seller, Company or any Subsidiary;
(xi) any obligations or liabilities owed to the selling shareholders of SunCrest Healthcare, Inc. arising out of or relating to the acquisition of SunCrest Healthcare, Inc. by Seller and the Company;
(xii) any broker, professional or similar fees and expenses arising out of or relating to the transactions contemplated by this Agreement;
(xiii) any past-due accounts payable and accrued liabilities which were not brought current prior to the pre-Closing cash distribution and which were not included in the computation of Working Capital; and
(xiv) the matters set forth on Section 10.1 of the Disclosure Schedule. For purposes of calculating the amount of any Losses incurred, arising out of or relating to a claim made pursuant to this Section 10.1(a), no effect shall be given to any materiality or Material Adverse Effect qualification provided in any representation, warranty or covenant of the Company or Seller.
(b) Notwithstanding the foregoing, Seller shall only be required to indemnify a Buyer Group Member for Purchaser Indemnitees Losses incurred by such Buyer Group Member under Section 10.1(a) to the extent that:
(i) any particular Loss equals or exceeds Five Thousand Dollars ($5,000.00);
(ii) the aggregate amount of Losses exceed $400,000 (the “Deductible”) (It being understood that Seller shall bear no indemnification responsibility for the Deductible, but the Deductible shall not apply to (A) claims for fraud, claims for breach of the representations and warranties in Sections 4.2 ((Authorization, Validity and Effect of Agreement), 4.4 (Title to Shares), 4.5 (Capitalization), 4.6 (Subsidiaries), 4.10 (Taxes), 4.18 (Employee Benefits), 4.22 (No Brokers) or 4.25 (Worker’s Compensation), and (C) claims made pursuant to any of Sections 10.1(a) (ii) through (xiv) (other than a claim for a breach of Section 6.3 hereof which claims shall be limited subject to funds available the Deductible)); and
(iii) subject to the terms of the Escrow Agreement and the Note, the aggregate amount required payable by Seller for claims made pursuant to Section 10.1(a) shall not exceed the amount of $5,000,000 (the “Cap”), except for claims arising out of a breach of the Seller Fundamental Representations or fraud, which shall not exceed the Purchase Price. Notwithstanding the foregoing, any set-off of proceeds owed by Company to Seller pursuant to the Note shall not apply towards the Cap.
(c) The indemnification provided for in Section 10.1(a) shall terminate 18 months after the Third Party Controlled Current Spread Custodial Account Closing Date (and no claims shall be made by any Buyer Group Member under Section 10.1(a) thereafter), except for indemnification claims arising out of a breach of Seller Fundamental Representations or Section 10.1(a)(ix), which shall terminate at the Current Spread Reserve Account.later of (i) 18 months after the Closing Date, or (ii) the statute of limitations for the underlying claim plus 60 days. Notwithstanding the foregoing, the indemnification by Seller shall continue as to any Losses of which any Buyer Group Member has validly given a Claim Notice to the Seller Representative in accordance with the requirements of Section 10.3 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 10.1(c), as to which the obligation of Seller shall continue solely with respect to the specific matters in such Claim Notice until the liability of Seller shall have been determined pursuant to this Article X, and Seller shall have reimbursed all Buyer Group Members for the full amount of such Losses that are payable with respect to such Claim Notice in accordance with this Article X.
Appears in 1 contract
Indemnification by Seller. (a) Subject to the terms and conditions of this Agreement, Seller shall indemnifywill defend, defend indemnify and hold Purchaser, its affiliates Buyer and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) Affiliates harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
against: (i) Any material all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable fees and expenses of attorneys incurred in investigation or defense of any third-party Action, but excluding fees, costs and expenses of attorneys, accountants, consultants or other experts or witnesses incurred in the investigation or prosecution of any non third-party Action) related to (A) any liability or obligation of Seller of any nature whatsoever which has not been expressly (and in writing) assumed by Buyer, including without limitation, any obligation or liability incurred in connection with the operation of the Business prior to the Closing or (B) any breach of a representation and warranty or warranty by Seller, or non-fulfillment covenant of any covenant or obligation of Seller, contained Seller in this Agreement or the Assignment Agreement;
and (ii) Any servicing act or omission all costs and expenses of any prior servicer relating to any Mortgage Loan Buyer (including, without limitation, reasonable fees and any act or omission expenses of any party related to attorneys) incurred in connection with the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise successful enforcement of any rights of setoff or other netting arrangements Buyer under the indemnity provided in this Section 10.01.
(b) Promptly after receipt by the Agency Buyer of notice of any third-party Action in respect of which indemnity may be sought against Seller that results hereunder (for purposes of this Section 10.01, a "Buyer's Assertion"), Buyer will notify Seller in a decrease in Servicing Agreements termination payments due writing of the Buyer's Assertion, but the failure to so notify Seller with respect will not relieve Seller of any liability it may have to Buyer, except to the Mortgage Loans from extent Seller has suffered actual prejudice thereby. Seller will be entitled to participate in the Agency or in a shortfall defense of funds such Buyer's Assertion. If Seller, by written notice to pay the Current Excess Servicing Spread;
(v) Any breach Buyer within 30 days after receipt by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of such Buyer's Assertion, acknowledges its responsibility to indemnify Buyer based on the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third facts alleged in the third-party claims subject Action and the Buyer's Assertion and if Seller elects to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claimdo so, Seller shall have the right will also be entitled to assume the defense of such Third Party Claim using Buyer's Assertion, at its own expense, with counsel of its choice chosen by it which will be reasonably satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will promptly provide Seller with: (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Seller deems necessary to defend such Buyer's Assertion, including, without limitation, providing Seller and its attorneys access to any potentially-relevant documents, information, or individuals within the applicable Purchaser Indemniteecontrol of Buyer. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, but may not Seller and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding that Seller may have elected as provided above to assume the defense of any settlement without the prior written consent of the applicable Purchaser IndemniteeBuyer's Assertion, which shall not be unreasonably withheld. A Purchaser Indemnitee shall Buyer will have the right to select participate in the investigation and defense thereof, with separate counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer.
(c) Notwithstanding anything in this Section 10.01 to otherwise separately defend itself at its own expense but shall the contrary: (i) Seller will have no obligation with respect to any Buyer's Assertion if, in connection therewith, Buyer, without the written consent of Seller, settles or compromises any Action or consents to the entry of any judgment (provided Seller has not rejected the Buyer's Assertion or failed to respond within the time allotted under Section 10.01(b) above to proper notice of the Buyer's Assertion, in which case Sellers obligation will be determined by mutual agreement between the Parties or under the procedures described in Section 10.03 below); and (ii) Seller will not, without the written consent of Buyer with respect to any Buyer's Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer of a duly executed written release of Buyer from all liability in respect of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyer; or (B) settle or compromise any Action in any manner that, in the reasonable judgment of Buyer or enter into its counsel, may materially adversely affect Buyer or its Affiliates, it being acknowledged and agreed that any settlement or compromise pursuant to which the sole relief is monetary damages that are paid in full by Seller will not be deemed to materially adversely affect Buyer or its Affiliates.
(d) Upon the payment of any settlement or judgment pursuant to this Section 10.01 with respect to the Third Party Claim without the prior written consent any Buyer's Assertion, Seller will be subrogated to all rights and remedies of Seller, which consent shall not be unreasonably withheld. Any exercise Buyer and its Affiliates against any third party in respect of such rights Buyer's Assertion to the extent of the amount so paid by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under Seller.
(e) The indemnity provided for by this Section 11.01 or any other provision 10.01 will be Buyer's and its Affiliates' exclusive source of this Agreement. With recovery against Seller with respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountmatters covered hereby.
Appears in 1 contract
Samples: Asset Sale and Purchase Agreement (Worthington Foods Inc /Oh/)
Indemnification by Seller. (a) Seller shall indemnifycovenants and agrees to defend, defend indemnify and hold harmless Purchaser, its affiliates and its Parent and their respective officers, directors, managersmembers, officersaffiliates, employees, agents, representatives successors and advisors permitted assigns (collectively, the “Purchaser Indemnitees”) harmless from and shall against, and pay or reimburse the applicable Purchaser Indemnitee Indemnitees for any Losses suffered and all claims, demands, losses, damages, liabilities, strict liabilities, obligations, fines, costs and expenses (including interest and penalties with respect thereto and reasonable attorneys’ fees and out-of-pocket expenses and costs of investigation), or incurred by any Purchaser Indemnitee after the Closing Date which result fromother damages (whether absolute, accrued, conditional or otherwise and whether or not resulting from third party claims) fixed or contingent, liquidated or unliquidated, matured or unmatured and all demands, assessments, judgments (collectively, “Losses”), resulting from or arising out of:
(ia) Any material any inaccuracy in or breach of a any representation or warranty made by Seller herein or by Seller in any agreement, document or instrument delivered by or on behalf of Seller pursuant to this Agreement;
(b) Subject to Section 6.6, Seller, ’s conduct of the Business or ownership of the Purchased Assets prior to the Closing Date; but specifically excluding the Assumed Liabilities;
(c) any act of fraud related to this Agreement;
(d) any breach or non-fulfillment of any covenant covenant, agreement or obligation to be performed by Seller hereunder or by Seller pursuant to any agreement, document or instrument delivered by or on behalf of Seller, contained in Seller pursuant to this Agreement or the Assignment Agreement;
(iie) Any servicing act any Excluded Asset or omission of any prior servicer relating to third party claim or other liabilities arising from any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage LoanExcluded Asset;
(iiif) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do soExcluded Liabilities;
(ivg) Any exercise of any rights of setoff or other netting arrangements non-compliance by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency any applicable fraudulent transfer or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreementbulk sales law; and
(vih) Litigationany and all liabilities for Taxes owed by Seller; or
(i) all actions, suits, proceedings, governmental investigationsdemands, orders, injunctions assessments or decrees resulting from judgments (including all reasonable attorney fees and expenses) incident to any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountforegoing.
Appears in 1 contract
Indemnification by Seller. (a) Seller shall will indemnify, defend and hold Purchaser, harmless Buyer and its affiliates shareholders and its and their respective affiliates, and the shareholders, directors, managers, officers, employees, agents, representatives successors and advisors (the “Purchaser Indemnitees”) harmless assigns of any of such persons, from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result fromagainst:
a. all losses, damages, liabilities, deficiencies or obligations of or to Buyer resulting from or arising out of (i) Any material any breach of a any then surviving representation or warranty made by SellerSeller in this Agreement, or non-fulfillment (ii) any breach of any covenant then surviving covenant, agreement or obligation of Seller, Seller contained in this Agreement or the Assignment Agreement;
, (iiiii) Any servicing act or omission of any prior servicer relating third party claim with respect to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to Seller's operation of the Mortgage Loans from Purchased Assets or Seller's conduct of the Agency Relevant Business, which act or omission occurred prior to or on the Closing Date without regard to whether such third party claim with respect to such act or omission is asserted before or after the Closing Date, (iv) any liability or obligation of Seller not included in a shortfall of funds to pay the Current Excess Servicing Spread;
Assumed Liabilities, (v) Any breach any claim that the transactions contemplated by Seller this Agreement violate any bulk transfer or fraudulent conveyance laws of the Asset Purchase Agreement; and
any jurisdiction, (vi) LitigationSeller's failure to deliver any Required Consent to Buyer, and (vii) any claim relating in any manner to the operation of the Relevant Business prior to and on the Closing Date.
b. all claims, actions, suits, proceedings, governmental investigationsdemands, ordersjudgments, injunctions assessments, fines, interest, penalties, costs and expenses (including settlement costs and reasonable legal, accounting, experts' and other fees, costs and expenses) incident or decrees relating to or resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountforegoing.
Appears in 1 contract
Indemnification by Seller. In addition to and in no way limiting any other provisions of this Agreement:
(a) Seller shall indemnify, defend hereby agrees subsequent to the Closing Date to indemnify and hold Purchaser, its affiliates Purchaser and its and their respective directors, managerspersons serving as shareholders, officers, employeesdirectors, agentsemployees or agents thereof (individually a "Purchaser Indemnified Party" and collectively, representatives and advisors (the “"Purchaser Indemnitees”Indemnified Parties") harmless from from, and shall reimburse against any damages, liabilities, losses, taxes, fines, penalties, costs, and expenses (including, without limitation, reasonable fees of counsel) (collectively, "Purchaser Indemnified Losses") of any kind or nature whatsoever (whether or not arising out of third party claims and including all amounts paid in investigation, defense or settlement of the applicable Purchaser Indemnitee for any Losses foregoing) which may be sustained or suffered or incurred by any Purchaser Indemnitee after of them arising out of or based upon any of the Closing Date which result fromfollowing matters:
(i) Any material breach of a representation fraud or warranty intentional misrepresentation by Seller, Seller in or non-fulfillment of any covenant of its representations, warranties or obligation of Seller, contained in covenants under this Agreement or the Assignment Agreementany Related Agreement or in any certificate, schedule, exhibit or financial statement delivered pursuant hereto or thereto;
(ii) Any servicing act or omission any other breach of any prior servicer relating to representation, warranty or covenant of Seller under this Agreement or any Mortgage Loan and Related Agreement or in any act certificate, schedule, exhibit or omission financial statement delivered pursuant hereto or thereto, or by reason of any party related to the origination claim, action or proceedings asserted or instituted growing out of any Mortgage Loan;matter or thing constituting a breach of such representations or warranties or covenants or any conduct by Seller or any affiliate of the Business or performance by Seller or any affiliate under any Assumed Contract prior to closing; and
(iii) Any act, error or omission any liability obligation of Seller relating to any Excluded Liabilities.
(b) Notwithstanding the foregoing, the right of Purchaser Indemnified Parties to indemnification under subsection 9.1(a) shall be subject to the following provisions:
(i) no indemnification pursuant to Subsection 9.1(a) shall be payable to any Purchaser Indemnified Party unless the total of Purchaser Indemnified Losses pursuant to Subsection 9.1(a) shall exceed Twenty-Five Thousand and 00/100 Dollars ($25,000.00) in servicing any the aggregate, whereupon the full amount of such claims in excess of Twenty-Five Thousand and 00/100 Purchaser Indemnified Losses that result from or relate to a breach of Sections 2.4 and 2.9 of this Agreement by Seller; and (ii) Purchaser Indemnified Losses under Section 9.1(a)(i), shall entitle Purchaser to recover such Purchaser Indemnified Losses dollar for dollar without regard to the Mortgage Loans, including improper action or failure to act when required to do soTwenty-Five Thousand and 00/100 Dollars ($25,000.00) threshold;
(ivii) Any exercise the indemnification obligations of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to claims pursuant to Subsections 9.1(a)(ii) and 9.1(a)(iii) shall be limited in the Mortgage Loans from aggregate to the Agency or in a shortfall of funds to pay Purchase Price (the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement"Indemnification Cap"); and
(viiii) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. no indemnification shall be payable to a Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Indemnified Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to a claim asserted pursuant to Subsection 9.1(a) at any time after the Third Party Claim without date two (2) years subsequent to the Closing Date (the "Indemnification Termination Date"); provided however, that any written claims made by Purchaser Indemnified Parties pursuant to Section 9.1 (a) prior written consent of Sellerto the Indemnification Termination Date which have not been resolved prior to the Indemnification Termination Date may be pursued and resolved after the Indemnification Termination Date. Notwithstanding the foregoing, which consent the two (2) year survival period shall not be unreasonably withheld. Any exercise apply to breaches of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account2.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fortune Diversified Industries Inc)
Indemnification by Seller. (a) From and after the Closing, subject to Section 10.5, Seller shall indemnify, defend and hold Purchaser, its affiliates indemnify Buyer and its and their respective directors, managersAffiliates, officers, directors, employees, agentsshareholders, representatives and advisors agents (the “Purchaser IndemniteesBuyer Indemnified Parties”) against and hold them harmless from any liability, claim, damage, Tax, or expense (including reasonable legal fees and shall reimburse the applicable Purchaser Indemnitee for any Losses expenses) (“Losses”) suffered or incurred by any Purchaser Indemnitee after Buyer Indemnified Party as a result of, arising from, or relating to the Closing Date which result fromfollowing:
(ia) Any material any breach of a any representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, Seller contained in this Agreement or the Assignment any certificate delivered pursuant hereto;
(b) any breach of any covenant or agreement of Seller contained in this Agreement;
(iic) Any servicing act liabilities of Seller resulting from or omission arising out of any the conduct of the Business prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage LoanClosing, except to the extent such liabilities were required to be assumed by Buyer at Closing pursuant to Section 2.4;
(iiid) Any act, error any breach of or omission of Seller in servicing default under any Retained Agreement arising from the consummation of the Mortgage LoansClosing and the parties’ execution and performance of the Management Agreement without any Consent required under such Retained Agreement, including improper action Losses arising from the premature termination of such Retained Agreement, Losses arising from Buyer’s inability to take and retain possession of any inventory or other Assets purchased by Buyer and located on the leased premises, or any costs or adverse changes imposed by the lessor or other contracting party under such Retained Agreement in connection with granting its Consent to the assignment of such Retained Agreement, except to the extent that such breach or default was caused by Buyer’s failure to act when required comply with any covenant of Buyer under the Management Agreement that relates to do sosuch Retained Agreement;
(ive) Any exercise expenses of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect relating to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller consummation of the Asset Purchase transactions contemplated by this Agreement, including fees and expenses of attorneys, accountants, financial advisors, and brokers; and
(vif) Litigationany action, proceedingssuit, governmental investigationsproceeding, ordersclaim, injunctions demand, assessment, or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory judgment incident to the applicable Purchaser Indemnitee, but may not enter into any settlement without foregoing or incurred in investigating or to avoid the prior written consent of same or to oppose the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment imposition thereof or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under in enforcing this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountindemnity.
Appears in 1 contract
Indemnification by Seller. Subject to the limitations set forth in Section 12.4, Seller, the Shareholders, and the Principals (acollectively, the “Seller Indemnifying Parties” or individually, “Seller Indemnifying Party”) Seller shall indemnifywill, defend jointly and severally, indemnify and hold Purchaserharmless Buyer, its affiliates and its and their respective shareholders, directors, managers, officers, employees, agents, Affiliates, and representatives and advisors (collectively, the “Purchaser Buyer Indemnitees”) harmless from in respect of any and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered all Damages, whether or not due and payable, whenever arising, incurred by any Purchaser Indemnitee after the Closing Date which result fromBuyer Indemnitees in connection with:
(ia) Any material any breach or inaccuracy of a any representation or warranty made by Seller, or non-fulfillment of with respect to any covenant or obligation of Seller, contained Seller Indemnifying Party in this Agreement or in any Transaction Document delivered at the Assignment AgreementClosing by Seller or other Seller Indemnifying Party;
(iib) Any servicing act or omission any breach of any prior servicer covenant, agreement or undertaking made by or with respect to any Seller Indemnifying Party in this Agreement or in any Transaction Document delivered at the Closing by any Seller Indemnifying Party;
(c) any Excluded Liabilities;
(d) any Damages arising on or after the Effective Time and before the third anniversary of the Effective Time relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loanmatters set forth on Schedule 12.2;
(iiie) Any actany fraud, error constructive fraud, fraudulent inducement, or omission of Seller intentional misrepresentation made in servicing any of the Mortgage Loans, including improper action this Agreement by or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency Seller or in a shortfall of funds to pay the Current Excess Servicing Spread;any Seller Indemnifying Party; or
(vf) Any breach any errors or inaccuracies in the Audited Financial Statements (or differences between the Draft and Final Audited Financial Statements) that in the aggregate overstated Seller’s earnings on a pre-tax basis by Seller of $60,000 or more for the Asset Purchase Agreementfiscal year ended June 30, 2010; and
(vi) Litigationin this event, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser Parties agree that Damages for this purpose shall notify Seller promptly after receiving written notice of equal the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt aggregate amount of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights overstatement multiplied by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account7.1234.
Appears in 1 contract
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates Buyer and its and their respective directors, managersaffiliates, officers, directors, employees, agents, representatives successors and advisors assigns (the “Purchaser Indemnitees”each a "Buyer Indemnified Party") shall be indemnified and held harmless from and shall reimburse the applicable Purchaser Indemnitee by Seller for any Losses and all liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including, without limitation, reasonable attorneys' and consultants' fees and expenses) actually suffered or incurred by them, net of any Purchaser Indemnitee after insurance proceeds and other recoveries and reimbursements from third Persons actually received by them (it being specifically agreed that they are under no obligation to pursue any such insurance proceeds or other recoveries or reimbursements) but excluding punitive damages and consequential damages which are not directly related to the Closing Date which result from:
matter giving rise to the predicate liability (ihereinafter a "Loss"), arising out of or resulting from (a) Any material the breach of a any representation or warranty made by SellerSeller under Article IV hereof (so long as the particular representation or warranty survives the Closing and the Buyer Indemnified Party makes a claim for indemnification prior to expiration of such representation or warranty), (b) fraud or non-fulfillment (c) the Excluded Obligations. In addition, for a period of one year from the Closing Date, the Buyer Indemnified Parties shall be indemnified and held harmless by Seller for all Losses arising out of or resulting from the operation of the Business as currently conducted infringing on any copyright, trade secret, trademark, service mark, trade name, trade dress, logo, mask work or patent of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related Pexxxx. Notwithstanding anything herein to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claimcontrary, Seller shall have no liability to indemnify or hold harmless any Buyer Indemnified Party until the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory aggregate Losses incurred by Buyer Indemnified Parties exceed $200,000, and then only to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheldextent such Losses exceed $200,000. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or Notwithstanding any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreementthe contrary, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of no event will Seller's liability for Losses exceed $6,000,000; provided however, such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees limitation on maximum liability shall not be limited to funds available apply in the Third Party Controlled Current Spread Custodial Account cases of fraud or the Current Spread Reserve Accountwillful or grossly negligent misrepresentation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Manhattan Associates Inc)
Indemnification by Seller. (a) Subject to the limitations set forth in Sections 8.1 and 8.4, Seller shall indemnify, defend hereby agrees to indemnify and hold Purchaser, its affiliates Buyer and its and their respective directors, managersemployees, officers, employees, agents, representatives directors and advisors Affiliates (the each a “Purchaser IndemniteesBuyer Indemnified Party”) harmless from and shall reimburse the applicable Purchaser Indemnitee for against any Losses suffered and all claims, demands, suits, proceedings, judgments, losses, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) imposed upon or incurred by any Purchaser Indemnitee after Buyer Indemnified Party as a result of or in connection with any of the Closing Date which result fromfollowing:
(i) Any material the breach of a representation or warranty made by Seller, or non-fulfillment of any covenant or obligation of Seller, contained Seller in this Agreement or the Assignment Agreement;
(ii) Any servicing act the breach of, or omission of default in the performance of, any prior servicer relating covenant, agreement or obligation to be performed by Seller, in whatever capacity, pursuant to this Agreement or any Mortgage Loan and any act agreement or omission of any party related to the origination of any Mortgage Loan;instrument executed in connection herewith or pursuant hereto; and
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;Retained Liabilities.
(ivb) Any exercise Within thirty (30) days after receipt by a Buyer Indemnified Party of any rights notice of setoff an Action or other netting arrangements event giving rise to a claim by the Agency against Seller that results in Buyer (a decrease in Servicing Agreements termination payments due to Seller “Buyer Claim”) with respect to the Mortgage Loans from the Agency or in which a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject Buyer Indemnified Party may be entitled to indemnification under this Agreement Section 8.2 the party receiving such notice shall notify (eachthe “Buyer Claim Notice”) Seller in writing of the commencement of such Action or the assertion of such Buyer Claim. Seller shall have the option, a “Third and shall notify the Buyer Indemnified Party Claim”in writing within 10 Business Days after the date of the Buyer Claim Notice of their election, either: (A) to participate (at the expense of Seller) in the defense of such Action or Buyer Claim (in which case the defense of such Action or Buyer Claim shall be controlled by the Buyer Indemnified Party) or (B) to take charge of and control the defense of such Action or Buyer Claim (at the expense of Seller). Upon receipt If Seller elects to control the defense, it will not compromise or settle the Action or Buyer Claim if (i) the amount to be paid in settlement exceeds the Maximum Indemnity Amount or (ii) the settlement does not include a provision releasing the Buyer Indemnified Party from all liabilities with respect thereto. If Seller fails to notify the Buyer Indemnified Party of their election within the applicable response period, then Seller shall be deemed to have elected not to control the defense of such notice Action or Buyer Claim. If Seller elects to control the defense of a Third Party any Action or Buyer Claim, Seller the Buyer Indemnified Party shall have the right to assume employ separate counsel and participate in the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser IndemniteeAction or Buyer Claim, but may not enter into any settlement without the prior written consent fees and expenses of such counsel shall be at the expense of the applicable Purchaser IndemniteeBuyer Indemnified Party.
(c) If Seller does not control the defense of any Action or Buyer Claim, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment Buyer Indemnified Party may only settle such Action or enter into any settlement Buyer Claim with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 1 contract
Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Sale Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase and Sale Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;; provided, however, that the applicable Purchaser Indemnitee has taken all commercially reasonable and appropriate actions to mitigate any such losses, damages, deficiencies, claims, causes of action or expenses as reasonably requested by Seller, which such failure of mitigation shall not relieve Seller of its indemnification obligations in this Section 11.01 but may affect the amount of such obligation; and further provided, that any Losses
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.
Appears in 1 contract
Samples: Current Excess Servicing Spread Acquisition Agreement (Nationstar Mortgage Holdings Inc.)
Indemnification by Seller. (a) Subject to the provisions of Section 15.4, from and after the Closing, Seller shall indemnify, defend indemnify and hold Purchaserharmless the Buyer, its affiliates and its and the Company, each of their respective present and future directors, managers, officers, employees, consultants and agents, representatives and advisors each of the directors, officers, heirs, executors, successors and assigns of any of the foregoing (collectively, the “Purchaser Indemnitees”"Buyer Indemnified Persons") harmless from and shall reimburse the applicable Purchaser Indemnitee for against any Losses suffered or and all (i) Seller Environmental Obligations and Seller Uninsured Liabilities incurred by or asserted against any Purchaser Indemnitee of the Buyer Indemnified Persons, INCLUDING ANY SELLER ENVIRONMENTAL OBLIGATIONS AND SELLER UNINSURED LIABILITIES BASED ON NEGLIGENCE, GROSS NEGLIGENCE OR STRICT LIABILITY OF THE BUYER INDEMNIFIED PERSON OR ANY OTHER THEORY OF LIABILITY, WHETHER IN LAW (WHETHER COMMON, CIVIL OR STATUTORY) OR EQUITY (but subject to the limitations contained in the definitions of Seller Environmental Obligations and Seller Uninsured Liabilities), and (ii), subject to the limitations of Section 13.1 and Article 14, any Covered Liability resulting from any breach or nonfulfillment of any representation, warranty, covenant or agreement on the part of Seller which is expressly set forth in this Agreement. Seller's indemnity obligations under clause (i) of this Section 15.2 with respect to Seller Uninsured Liabilities shall not extend to or cover any Seller Uninsured Liabilities arising out of claims or Actions filed, asserted or threatened more than five years after the Closing Date which result from:
Date, however, Seller's indemnity obligations under clause (i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller Section 15.1 with respect to the Mortgage Loans from the Agency Seller Uninsured Liabilities shall extend to and cover all Seller Uninsured Liabilities arising out of claims or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) LitigationActions filed, proceedings, governmental investigations, orders, injunctions asserted or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory threatened prior to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent end of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Thirdsaid five-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountyear period.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tesoro Petroleum Corp /New/)
Indemnification by Seller. (a) Subject to Section 9.1 and Section 9.6, Seller shall and Seller Parent will jointly and severally indemnify, defend and hold Purchaser, its affiliates Purchaser and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) Related Parties harmless from and shall will reimburse the applicable Purchaser Indemnitee and its Related Parties for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which or its Related Parties, that result fromfrom or arise out of:
(ia) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, Seller contained in this Agreement or the Assignment Agreement;
(iib) Any servicing act or omission breach of any prior servicer relating to any Mortgage Loan and any act covenant, agreement or omission other obligation of any party related to the origination of any Mortgage LoanSeller contained in this Agreement;
(iiic) In the event that the terms of Section 6.5 have been breached and any affected Mortgage Loan is refinanced or prepaid in full, an amount equal to the Servicing Rights Reimbursement Price;
(d) In the event that (i) the Seller, an Originator, a Prior Servicer or Purchaser is required to repurchased a Mortgage Loan from an Investor due a breach by Seller, any such Originator or Prior Servicer of Applicable Requirements or (ii) a breach of any of the representations set forth in Article IV of this Agreement has occurred and the aggregate unpaid principal balance of the Mortgage Loans for which such breach has occurred exceeds the Deductible, the related Servicing Rights Reimbursement Price (even if by the time of repurchase, the servicing for the related Mortgage Loan has been terminated by the related Investor as a result of the facts and circumstances underlying such breach);
(e) Any actContested Enforcement Action;
(f) Any Contested Litigation;
(g) Any breach by Seller, error any Originator or omission any Prior Servicer of Applicable Requirements; and/or
(h) the matters set forth on Schedule 4.4 to the Seller in servicing Disclosure Letter. provided, that Seller will not be responsible to Purchaser or its Related Parties for that portion, if any, of any Loss that arises out of or results from Purchaser’s or its designee’s failure to service any of the Mortgage Loans, including improper action Loans or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results Servicing Rights after each Sale Date in a decrease in Servicing Agreements termination payments due to Seller compliance with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountall Applicable Requirements.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing Date, Seller shall indemnify, hold harmless, and defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless Buyer from and against all losses and liabilities, including reasonable attorneys' fees and expenses, arising out of any actions, suits, or proceedings commenced prior to the Closing (other than proceedings to prevent or limit the consummation of this Agreement) relating to operations at the Branches and/or the Deposit Liabilities of the Branches; and Seller shall reimburse the applicable Purchaser Indemnitee for further indemnify, hold harmless, and defend Buyer from and against all losses and liabilities, including reasonable attorneys' fees and expenses, arising out of any Losses suffered actions, suits, or incurred by any Purchaser Indemnitee proceedings commenced on or after the Closing Date which result from:
to the extent the same relate to operations at the Branches and/or the Deposit Liabilities of the Branches conducted prior to the Closing Date. The obligations of Seller under this Section 8.03 shall be contingent upon Buyer giving Seller written notice (i) Any material breach of a representation receipt by Buyer of any process and/or pleadings in or warranty by Sellerrelating to any actions, suits, or non-fulfillment proceedings of any covenant or obligation of Seller, contained the kinds described in this Agreement or the Assignment Agreement;
Section 8.03, including copies thereof, and (ii) Any servicing act or omission of the assertion of any prior servicer claim or demand relating to any Mortgage Loan the operation of the Branches and/or the Deposit Liabilities or Branch Loans prior to the Closing, including, to the extent known to Buyer, the identity of the person(s) or entity(ies) asserting such claim or making such demand and any act or omission the nature thereof, and including copies of any party related correspondence or other writings relating thereto. The rights of Buyer under this Section shall not apply to any suits, judgments, demands, set-offs, or other claims arising directly or indirectly in conjunction with the Branch Loans or other Assets transferred in accordance with this Agreement except claims for personal injury arising from injuries occurring at the Branches prior to the origination Closing. All notices required by the preceding sentence shall be given within fifteen (15) days of the receipt by Buyer of any Mortgage Loan;
(iii) Any act, error such process or omission of Seller in servicing pleadings or any of the Mortgage Loans, including improper action oral or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees such claims or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”)demands. Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume take over Buyer's defense in any such actions, suits, or proceedings through counsel selected by Seller, to compromise and/or settle the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel same and to otherwise separately defend itself at its own expense but shall not consent to the entry prosecute any available appeals or reviews of a any adverse judgment or enter into any settlement with respect to ruling that may be entered therein. The covenants and obligations of Seller hereunder shall survive the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve AccountClosing.
Appears in 1 contract
Samples: Branch Purchase and Assumption Agreement (Banc Corp)
Indemnification by Seller. (a) Subject to Section 10.5 hereof, Seller shall indemnify, defend hereby agrees to indemnify and hold Purchaser, its affiliates Purchaser and its and their respective directors, managers, officers, employees, Affiliates, stockholders, agents, representatives attorneys, representatives, successors and advisors permitted assigns (collectively, the “Purchaser IndemniteesIndemnified Parties”) harmless from and shall reimburse the applicable Purchaser Indemnitee for against any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:and all losses, liabilities, claims, demands, judgments, damages (excluding incidental and consequential damages), fines, suits, actions, costs and expenses (individually, a “Loss” and, collectively, “Losses”):
(i) Any material based upon or resulting from any breach of a any representation or and warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, Seller contained in this Agreement or in the Assignment Agreementcertificate delivered pursuant to Section 4.2(a)(iii);
(ii) Any servicing act based upon or omission resulting from the breach of any prior servicer relating to any Mortgage Loan and any act or omission covenant on the part of any party related to the origination of any Mortgage LoanSeller set forth herein;
(iii) Any actany Liabilities with respect to product warranties or guaranties on products manufactured, error sold or omission distributed by the Business during the twelve (12) months prior to the Closing Date and where a claim arises during the twelve (12) month warranty period for each such product (including, for the avoidance of doubt any warranty period given on any finished goods which are replaced or refunded in any such period(s)), to the extent that such Liabilities, in the aggregate, exceed the average amount of Liabilities incurred by Seller in servicing any of with respect to product warranties or guaranties during the Mortgage Loansthree twelve (12) month periods ended on September 30, including improper action or failure to act when required to do so;2009, 2010 and 2011; and
(iv) Any exercise based upon or arising directly from any Excluded Asset or any Excluded Liability.
(b) Purchaser acknowledges and agrees that Seller shall not have any liability under any provision of this Agreement for any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect Loss to the Mortgage Loans from extent that such Loss relates to action taken by Purchaser or any other Person (other than Seller in breach of this Agreement) after the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01Closing Date. Purchaser shall notify Seller promptly after receiving written notice of the assertion take and shall cause its Affiliates to take all reasonable steps to mitigate any Loss upon becoming aware of any litigationevent which would reasonably be expected to, proceedingsor does, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party Claim. For the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited to funds available in the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Accountgive rise thereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (Strategic Diagnostics Inc/De/)
Indemnification by Seller. (a) Subject to the limitations set forth in Sections 8.1 and 8.4, Seller shall indemnify, defend hereby agrees to indemnify and hold Purchaser, its affiliates Buyer and its and their respective directors, managersemployees, officers, employees, agents, representatives directors and advisors Affiliates (the each a “Purchaser IndemniteesBuyer Indemnified Party”) harmless from and shall reimburse the applicable Purchaser Indemnitee for against any Losses suffered and all claims, demands, suits, proceedings, judgments, losses, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) imposed upon or incurred by any Purchaser Indemnitee after Buyer Indemnified Party as a result of or in connection with any of the Closing Date which result fromfollowing:
(i) Any material the breach of a representation or warranty made by Seller, or non-fulfillment of any covenant or obligation of Seller, contained Seller in this Agreement or the Assignment Agreement;
(ii) Any servicing act the breach of, or omission of default in the performance of, any prior servicer relating covenant, agreement or obligation to be performed by Seller, in whatever capacity, pursuant to this Agreement or any Mortgage Loan and any act agreement or omission of any party related to the origination of any Mortgage Loan;instrument executed in connection herewith or pursuant hereto; and
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;Retained Liabilities.
(ivb) Any exercise Within thirty (30) days after receipt by a Buyer Indemnified Party of any rights notice of setoff an Action or other netting arrangements event giving rise to a claim by the Agency against Seller that results in Xxxxx (a decrease in Servicing Agreements termination payments due to Seller “Buyer Claim”) with respect to the Mortgage Loans from the Agency or in which a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject Buyer Indemnified Party may be entitled to indemnification under this Agreement Section 8.2 the party receiving such notice shall notify (each, a the “Third Party ClaimBuyer Claim Notice”). Upon receipt ) Seller in writing of the commencement of such notice Action or the assertion of a Third Party such Buyer Claim, . Seller shall have the right option, and shall notify the Buyer Indemnified Party in writing within 10 Business Days after the date of the Buyer Claim Notice of their election, either: (A) to assume participate (at the expense of Seller) in the defense of such Third Party Action or Buyer Claim using counsel of its choice reasonably satisfactory to (in which case the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this Agreement. With respect to any Third Party Claim subject to indemnification under this Agreement, the applicable Purchaser Indemnitee shall be required to cooperate in good faith with Seller to ensure the proper and adequate defense of such Third-Party ClaimAction or Buyer Claim shall be controlled by the Buyer Indemnified Party) or (B) to take charge of and control the defense of such Action or Buyer Claim (at the expense of Seller). For If Seller elects to control the avoidance of doubtdefense, Seller’s obligations for Purchaser Indemnitees shall it will not compromise or settle the Action or Buyer Claim if (i) the amount to be limited to funds available paid in settlement exceeds the Third Party Controlled Current Spread Custodial Account or the Current Spread Reserve Account.Maximum Indemnity Amount or
Appears in 1 contract
Samples: Purchase Agreement
Indemnification by Seller. (a) Subject to the terms, conditions, and limitations set forth in this Agreement, Seller shall indemnifyagrees from and after the Closing to defend, defend indemnify and hold Purchaser, its affiliates harmless Buyer (and its and their respective directors, managers, officers, employees, agents, representatives Affiliates and advisors (the “Purchaser Indemnitees”shareholders) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or against all losses, liabilities, damages, costs, claims, obligations and expense (including, without limitation, reasonable fees and expenses of attorneys and accountants) ("Losses") actually incurred by Buyer or any Purchaser Indemnitee after of such other indemnified parties to the Closing Date which result from:
extent arising from (i) Any material any breach of a any representation or warranty made by SellerSeller in this Agreement, the Assumption Agreement and Bill of Sale, the copyright assignment to be deliverxx xursuant to Section 3.01(a)(i) hereof or non-fulfillment the certificate to be delivered pursuant to Section 3.01(a)(iii) hereof, (ii) any breach of any covenant or obligation of Seller, contained made by Seller in this Agreement, the Assumption Agreement and Bill of Sale or the Assignment Agreement;
(iicopyright assignment to be delivxxxx pursuant to Section 3.01(a)(i) Any servicing act hereof, or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission any failure of Seller in servicing to perform or satisfy any of the Mortgage Loans, including improper action or failure to act when required to do so;Excluded Liability.
(ivb) Any exercise Promptly after receipt by Buyer of notice of any rights third-party Action in respect of setoff or other netting arrangements by the Agency which indemnity may be sought against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (eachfor purposes of this Section 9.02, a “Third Party Claim”"Buyer's Assertion"), Buyer will notify Seller in writing of the Buyer's Assertion, but the failure to so notify Seller will not relieve Seller of any liability it may have to Buyer, except to the extent Seller suffered actual prejudice thereby. Upon receipt Seller will be entitled to participate in the defense of such Buyer's Assertion. If Seller, by written notice to Buyer within 30 days after receipt by Seller of notice of a Third Party Claimsuch Buyer's Assertion, acknowledges its responsibility to indemnify Buyer based on the facts alleged in the third party Action and the Buyer's Assertion and if Seller elects to do so, Seller shall have the right will also be entitled to assume the defense of such Third Party Claim using Buyer's Assertion, at its own expense, with counsel of its choice chosen by it which will be reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not relieve Seller of its obligations and liabilities under this Section 11.01 or any other provision of this AgreementBuyer. With respect to any Third Party Claim subject such Buyer's Assertion, Buyer will promptly provide Seller with: (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Seller deems necessary to indemnification under this Agreementdefend such Buyer's Assertion, including without limitation providing Seller and its outside attorneys access to any potentially relevant documents, information, or individuals within the applicable Purchaser Indemnitee shall be required control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to cooperate the Business is contained in good faith with such documents or information, Seller and Buyer will enter into appropriate secrecy commitments to ensure protect such documents or information. Notwithstanding that Seller may have elected as provided above to assume the proper and adequate defense of such Third-Party Claim. For any Buyer's Assertion, Buyer will have the avoidance of doubt, Seller’s obligations for Purchaser Indemnitees shall not be limited right to funds available participate in the Third Party Controlled Current Spread Custodial Account or investigation and defense thereof, with separate counsel chosen by Buyer, but in such event the Current Spread Reserve Accountfees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer.
Appears in 1 contract
Samples: Asset Sale and Purchase Agreement (Interactive Data Corp/Ma/)
