Indemnification of Seller. In addition to, and not by way of limitation of, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with the transactions contemplated hereby, or under applicable law, and subject to the terms and conditions of this Article 7, Buyer agrees to defend, indemnify and hold harmless Seller and its subsidiaries and each of their respective directors, officers, employees, agents and Affiliates (collectively, the “Seller Group”) from and against any loss, liability, damage or expense suffered, incurred or paid by any member of the Seller Group after Closing: (a) which would not have been suffered, incurred or paid if all the representations, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreements, or in any other instrument or document furnished to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled; (b) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arises, in whole or in part, out of or in connection with Buyer’s conduct of the Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder); (c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement; (d) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities; (e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and (f) for all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing matters.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Casual Male Retail Group Inc)
Indemnification of Seller. In addition Buyer, on behalf of itself and its respective successors and assigns, hereby agrees to indemnify Seller and its Affiliates, agents, representatives, successors and permitted assigns (the "Seller Indemnified Parties") and save and hold each of them harmless from and against and pay on behalf of or reimburse the Seller Indemnified Party as and when incurred for any and all Losses which they may suffer, sustain or became subject to, and not by way in connection with, incident to resulting from or arising out of limitation of, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with the transactions contemplated hereby, way relating to or under applicable law, and subject to the terms and conditions of this Article 7, Buyer agrees to defend, indemnify and hold harmless Seller and its subsidiaries and each of their respective directors, officers, employees, agents and Affiliates (collectively, the “Seller Group”) from and against any loss, liability, damage or expense suffered, incurred or paid by any member of the Seller Group after Closingvirtue of:
(a) which would not have been suffered, incurred Any misrepresentation or paid if all breach of warranty on the part of Buyer under Article 5 of this Agreement or any misrepresentation in or omission from any of the representations, warranties, covenants statements, schedules and agreements of Buyer in this Purchase Agreementexhibits, the Related Agreements, certificates or in any other instrument instruments or document documents furnished to Seller by the Buyer made in connection with the transactions contemplated hereby had been (with respect or pursuant to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilledthis Agreement or any other Contemplated Agreement;
(b) Any nonfulfillment or breach of any covenant or agreement on the part of Buyer under this Agreement;
(c) Any action, demand, proceeding, investigation or claim by any third party (including governmental agencies) against or affecting a Seller Indemnified Party which, if successful, would give rise to or evidence the existence of or relate to a misrepresentation or breach of any of the representations, warranties, agreements or covenants of Buyer;
(d) Any claim for payment of fees and/or expenses as a result broker or finder in connection with the origin, negotiation, execution or consummation of this Agreement based upon any claim, action or proceeding asserted or brought against any member of the Seller Group alleged agreement between claimant and Buyer or any of such member’s assets Buyer's Affiliates; or
(including, without limitation, the Purchased Assetse) Any claim arising which arises, in whole or in part, out of or in connection with results from Buyer’s 's conduct of the Business after Closing or the Closing, including, without limitation, any claim, action or proceeding failure of Buyer to discharge solely the liabilities included in the calculation of the Final Net Tangible Book Value (except for matters relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunderXxxxx Xxx);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement;
(d) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing matters.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (K Tel International Inc), Purchase and Sale Agreement (Platinum Entertainment Inc)
Indemnification of Seller. In addition toBuyer, on behalf of itself and not by way of limitation ofits successors and assigns, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with the transactions contemplated hereby, or under applicable law, and subject to the terms and conditions of this Article 7, Buyer hereby agrees to defend, indemnify and hold harmless the Seller and its subsidiaries and each of their respective Affiliates, shareholders, directors, partners, officers, employees, agents agents, representatives, successors and permitted assigns of Buyer and their respective Affiliates (collectively, the “"Seller Group”Indemnified Parties") and save and hold each of them harmless from and against any loss, liability, damage and pay on behalf of or expense suffered, incurred or paid by any member of reimburse the Seller Group after ClosingIndemnified Party as and when incurred for any and all Losses which a Seller Indemnified Party may suffer, sustain or became subject to, in connection with, incident to resulting from or arising out of or in any way relating to or by virtue of:
(a) which would not have been suffered, incurred Any misrepresentation or paid if all breach of warranty on the part of Buyer under Section 6 of this Agreement or any misrepresentation in or omission from any of the representations, warranties, covenants statements, schedules and agreements of Buyer in this Purchase Agreementexhibits, the Related Agreements, certificates or in any other instrument instruments or document documents furnished to Seller by the Buyer made in connection with the transactions contemplated hereby had been (with respect or pursuant to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilledthis Agreement or any other Contemplated Agreement;
(b) as a result Any nonfulfillment or breach of any claim, action covenant or proceeding asserted or brought against any member agreement on the part of the Seller Group Buyer under this Agreement or any of such member’s assets (including, without limitation, the Purchased Assets) which arises, in whole or in part, out of or in connection with Buyer’s conduct of the Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder)other Contemplated Agreement;
(c) as Any action, demand, proceeding, investigation or claim by any third party (including governmental agencies) against or affecting a result Seller Indemnified Party which, if successful, would give rise to or evidence the existence of or relate to a misrepresentation or breach of any claim, action or proceeding asserted against any member of the Seller Group representations, warranties, agreements or any covenants of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase AgreementBuyer;
(d) as a result Any claim arising out of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s 's failure to pay, promptly and when due, any amount owing, in whole satisfy or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including discharge the Assumed Liabilities;
(e) Any claim for payment of fees and/or expenses as a result of any claim, action broker or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or finder in connection with the origin, negotiation, execution or consummation of this Agreement based upon any alleged agreement between claimant and Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; andor
(f) Any requirement of any federal, state or local taxing authority that Seller recognize taxable income for all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by any member the period beginning at the end of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of Tax Period and ending on the foregoing mattersClosing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Platinum Entertainment Inc)
Indemnification of Seller. In addition toSubject to the other provisions of this Article 6, Buyer shall defend, indemnify and hold Seller, together with its respective officers, employees, stockholders, subsidiaries, agents, advisors, attorneys, accountants, consultants and affiliates (collectively, the "Seller Indemnitees"), harmless from and against, and not promptly reimburse the Seller Indemnitees for, Losses that any Seller Indemnitee incurs or to which any Seller Indemnitee becomes subject (directly or indirectly and including without limitation future costs and expenses reasonably expected to be incurred in connection with any Loss), which Losses arise out of or in connection with:
(i) any Breach by way Buyer of limitation of, Seller’s rights otherwise provided in this Purchase Agreement or in any Related Agreement or any other document certificate, document, writing or instrument delivered by Buyer pursuant to this Agreement or a Related Agreement;
(ii) any claim asserted by any third party that, assuming the truth thereof, would constitute a Breach by Buyer of this Agreement, any Related Agreement, or any other certificate, document, writing or instrument delivered by Buyer pursuant to this Agreement or a Related Agreement;
(iii) the Assumed Liabilities and any liability arising out of the ownership or operation of the Business or the ownership or use of the Acquired Assets after the Closing Date that does not relate to any period prior to the Closing Date and that therefore is not a Retained Liability; or
(iv) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or arrangement alleged to have been made by any such person with the Buyer (or any person acting on its behalf) in connection with the transactions contemplated hereby, or under applicable law, and subject to the terms and conditions of this Article 7, Buyer agrees to defend, indemnify and hold harmless Seller and its subsidiaries and each of their respective directors, officers, employees, agents and Affiliates (collectively, the “Seller Group”) from and against any loss, liability, damage or expense suffered, incurred or paid by any member of the Seller Group after Closing:
(a) which would not have been suffered, incurred or paid if all the representations, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreements, or in any other instrument or document furnished to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;
(b) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arises, in whole or in part, out of or in connection with Buyer’s conduct of the Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement;
(d) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing mattersherein.
Appears in 1 contract
Samples: Asset Purchase Agreement (National Equipment Services Inc)
Indemnification of Seller. In addition toSubject to Section 11.C and upon Seller's written request, Dealer shall:
1. Defend Seller against any and not by way all claims that during the term of limitation ofthis Agreement may arise, Seller’s rights otherwise provided in this Purchase Agreement commence or be asserted against Seller in any other document delivered in connection with the transactions contemplated hereby, action concerning or under applicable law, and subject to the terms and conditions of this Article 7, Buyer agrees to defend, indemnify and hold harmless Seller and its subsidiaries and each of their respective directors, officers, employees, agents and Affiliates (collectively, the “Seller Group”) from and against any loss, liability, damage or expense suffered, incurred or paid by any member of the Seller Group after Closingalleging:
(a) which would not have been suffered, incurred or paid if all the representations, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreements, or in any other instrument or document furnished Dealer's failure to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;
(b) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arisescomply, in whole or in part, out with any obligation of Dealer under this Agreement;
(b) Any negligence, error, omission or act of Dealer in connection with Buyer’s conduct the preparation, repair or service (including warranty service, goodwill adjustments, and campaign inspections and corrections) by Dealer of Nissan Products;
(c) Any modification or alteration made by or on behalf of Dealer to a Nissan Product, except those made pursuant to the Business after express written instruction or with the Closingexpress written approval of Seller;
(d) Dealer's breach of any agreement between Dealer and Dealer's customer or other third party;
(e) Misleading, libelous or tortious statements, misrepresentations or deceptive or unfair practices by Dealer, directly or indirectly, to Seller, a customer or other third party including, without limitation, any claim, action or proceeding relating to Buyer’s Dealer's failure to perform under any agreement or commitment, the termination comply with Section 6.B of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder)this Agreement;
(cf) as a result Dealer's breach of any claimcontract or warranty other than a contract with or warranty of Seller or the manufacturer of a Nissan Product; or
(g) Any change in the employment status or in the terms of employment of any officer, action employee or proceeding asserted against agent of Dealer or of any member Principal Owner, Other Owner or Executive Manager including but not limited to, claims for breach of the employment contract, wrongful termination or discharge, tortious interference with contract or economic advantage, and similar claims; and
2. Indemnify and hold Seller Group or harmless from any of such member’s assets and all settlements made and final judgments rendered with respect to any liability claims described in Section 11.B.1; provided, however, that Dealer shall have no obligation to indemnify or alleged liability of hold Seller specifically assumed by Buyer under this Purchase Agreement;
harmless unless Seller: (di) as a result of any claim, action or proceeding asserted or brought against any member promptly notifies Dealer of the Seller Group or any assertion of such member’s assets which arises out of, or claim and the commencement of such action against Seller; (ii) cooperates fully in connection with, Buyer’s failure the defense of such action in such manner and to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect such extent as Dealer may reasonably require; (iii) consents to the Businessemployment of attorneys selected by Dealer and agrees to waive any conflict of interest then existent or which may later arise, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing matters.thereby enabling Dealer's
Appears in 1 contract
Samples: Dealer Term Sales & Service Agreement (Group 1 Automotive Inc)
Indemnification of Seller. In addition toBuyer shall defend, indemnify, save and hold harmless each of the Seller Parties from, against and with respect to any and all Losses for which any Seller Party may become liable, or which any Seller Party may incur or may be compelled to pay, in any Legal Proceeding against or otherwise involving any such Seller Party for or by reason of any acts, whether of omission or commission, which may be suffered or committed, directly or indirectly, arising out of or related or attributable to (i) the manufacture, sale, offer for sale, marketing, advertising, promotion, distribution, importation or use of any Product by Buyer or its licensees and Affiliates, including injury to any Person or property caused by a Product or its use, (ii) any claim that the activity of Buyer or any of its licensees or Affiliates with respect to its use of the Intellectual Property infringes upon the rights of any third party or results in any unfair trade practices, (iii) use by Buyer or any of its licensees or Affiliates of any trademark, trade name, logo or design (including the Marks) on any Product, or (iv) Buyer's breach of the representations and warranties set forth in Article 4 of this Agreement Notwithstanding the foregoing, nothing contained in the foregoing sentence shall obligate or be construed to obligate Buyer to indemnify any of the Selling Parties for any of Seller Parties' actions or omissions prior to the Signing Date, including any liability or claim arising out of or relating to a breach or some other action or omission of Seller Party or any claim against the same that occurred prior to the Signing Date. A Seller Party shall notify Buyer within a reasonable time of the receipt of Notice by such Seller Party of the making or instituting of a claim or Legal Proceeding under this Section 5.1, Buyer shall have the option of contesting or defending any claim or Legal Proceeding by counsel acceptable to the Seller Party, which acceptance shall not be unreasonably withheld, and not by way each such Seller Party shall reasonably cooperate in such contest or defense at the sole expense of limitation of, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered Buyer. The Buyer shall bear all reasonable expenses in connection with the transactions contemplated herebydefense and/or settlement of any such claim or Legal Proceeding, except that if a Seller Party desires to retain its own counsel to participate in the defense of such claim or under applicable lawLegal Proceeding, and subject to the terms and conditions of this Article 7it may do so at its own expense. Provided that Buyer shall within, Buyer agrees to defend, indemnify and hold harmless Seller and its subsidiaries and each of their respective directors, officers, employees, agents and Affiliates (collectivelya reasonable time after such Notice diligently contest or defend any claim or Legal Proceeding, the “Seller Group”) from Party shall not settle or compromise such claim or Legal Proceeding except with the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. If Buyer shall not within a reasonable time after such Notice diligently contest or defend any claim or Legal Proceeding, any Seller Party may contest or defend such claim or Legal Proceeding and against any lossmay, liabilitywithout the consent of Buyer, damage settle or expense sufferedcompromise such claim or Legal Proceeding, in which case Buyer shall bear all reasonable expenses incurred or paid by any member of the Seller Group after Closing:
(a) which would not have been suffered, incurred or paid if all the representations, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreements, or in any other instrument or document furnished to Seller Party in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;
(b) as a result defense and/or settlement of any claim, action such claim or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arises, in whole or in part, out of or in connection with Buyer’s conduct of the Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement;
(d) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing mattersLegal Proceeding.
Appears in 1 contract
Samples: Intellectual Property Exclusive License Agreement (Heelys, Inc.)
Indemnification of Seller. In addition to, Buyer covenants and not by way of limitation of, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with the transactions contemplated hereby, or under applicable law, and subject to the terms and conditions of this Article 7, Buyer agrees to defend, indemnify and hold harmless Seller and its subsidiaries and each of their respective officers, directors, officersmembers, employeesattorneys, agents and Affiliates representatives (collectivelythe "SELLER PARTIES") harmless for, the “Seller Group”) from and against any lossand all damages, liabilitylosses, damage or expense sufferedliabilities (absolute and contingent), incurred or paid by any member of the Seller Group after Closing:
(a) which would not have been sufferedfines, incurred or paid if all the representationspenalties, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreements, or in any other instrument or document furnished to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;
(b) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arises, in whole or in part, out of or in connection with Buyer’s conduct of the Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement;
(d) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses (including, without limitation, reasonable attorneys’ feescounsel fees and costs and expenses incurred in the investigation, defense or settlement of any claim covered by this indemnify) incurred with respect to or arising out of any demand, claim, inquiry, investigation, proceeding, action or cause of action that Seller Parties may suffer or incur by reason of:
(i) any member of the activities of the Company, whether before or after the date of this Agreement, other than liabilities arising out of any act or omission of Seller Group that was fraudulent, grossly negligent, in bad faith, or contrary to Seller's fiduciary duties to the Company and its members;
(ii) the inaccuracy or breach of any of the representations or warranties of Buyer or any of Buyer's members contained in this Agreement, or any of the agreements, certificates, documents or exhibits delivered in connection with this Agreement;
(iii) the failure to comply with, or the breach or default by Buyer or any action, proceeding, claim, assessment or judgment incident to of Buyer's members of any of the foregoing matterscovenants, warranties or agreements made by Buyer or any of Buyer's members contained in this Agreement, or any of the agreements, certificates, documents or exhibits delivered in connection with this Agreement; or
(iv) any misrepresentation contained herein or in any written statement or certificate furnished by Buyer pursuant to this Agreement or in connection with the transactions contemplated hereby.
Appears in 1 contract
Samples: Member Interest Purchase and Acquisition Agreement (Franchise Capital Corp.)
Indemnification of Seller. In addition to, and not by way of limitation of, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with the transactions contemplated hereby, or under applicable law, and subject Subject to the terms and conditions of this Article 7IX, Buyer agrees to defendindemnify, indemnify defend and hold harmless Seller, and the other Seller Parties, and their respective parent and subsidiary companies and other Affiliates, and its subsidiaries and each of their respective directors, officers, employeesemployees and agents, agents heirs, executors, personal representatives, administrators, successors and Affiliates assigns (collectivelythe "Seller Indemnified Persons"), the “Seller Group”) from and against any lossand all damages, liabilitylosses, damage liabilities, payments, obligations, penalties, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expense suffered, incurred or paid by any member of the Seller Group after Closing:
(a) which would not have been suffered, incurred or paid if all the representations, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreements, or in any other instrument or document furnished to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;
(b) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arises, in whole or in part, out of or in connection with Buyer’s conduct of the Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement;
(d) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses (including, without limitation, reasonable fees, disbursements and expenses of attorneys’ fees, accountants and other professional advisors) of any kind or nature ("Damages") which may be imposed on, incurred by or asserted against any member Seller Indemnified Person, arising out of or resulting from, directly or indirectly:
(a) the Seller Group inaccuracy of any representation or breach of any warranty of Buyer contained in connection with any action, proceeding, claim, assessment or judgment incident made pursuant to this Agreement or any of the foregoing mattersOperative Documents which survive the Closing; or
(b) the breach of any covenant or agreement of Buyer contained in this Agreement or in any of the Operative Documents;
(c) the Assumed Liabilities. PROVIDED, HOWEVER, THAT BUYER SHALL NOT BE LIABLE FOR ANY PORTION OF ANY DAMAGES RESULTING FROM A MATERIAL BREACH BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR ANY OF THE OPERATIVE DOCUMENTS OR FROM A SELLER INDEMNIFIED PERSON'S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT. No assumption of any portion of the Assumed Liabilities by Seller as to third parties shall in any way affect or reduce Buyer's indemnification obligations for all of the Assumed Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (NGC Corp)
Indemnification of Seller. In addition to, and not by way of limitation of, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with the transactions contemplated hereby, or under applicable law, and subject to the terms and conditions of this Article 7, Buyer Purchaser hereby agrees to defend, indemnify and hold harmless Seller and Seller, its subsidiaries and each of their respective directorsshareholders, officers, employeesdirectors, agents successors and Affiliates (collectivelyassigns, the “Seller Group”) harmless from and against any and all liability, loss, liability, damage cost or expense suffered, incurred which Seller may suffer or paid by any member become liable for as a result of the Seller Group after Closingor in connection with:
(a) which would not have been sufferedany inaccuracy or misrepresentation in, incurred or paid if all the representationsbreach of any representation or warranty of Purchaser contained in, warranties, covenants and agreements of Buyer in this Purchase Agreement, any of the Related Agreementsdocuments furnished pursuant to Section 4 attached hereto (the "Attendant Documents") or any certificate, schedule, list or in any other instrument or document to be furnished by Purchaser to Seller in connection with pursuant to this Agreement or any of the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilledAttendant Documents;
(b) as a result any breach or failure of Purchaser to perform any claim, action covenant or proceeding asserted or brought against any member of the Seller Group agreement required to be performed by Purchaser pursuant to this Agreement or any of such member’s assets the Attendant Documents;
(includingc) any Third Party Claim against the Seller resulting from, without limitation, the Purchased Assets) which arises, in whole or in part, arising out of or in connection with Buyer’s conduct any way related to (i) the failure of Purchaser to perform, pay or discharge any liability of Seller assumed by Purchaser, (ii) the operation of the Business after the Closing, including, without limitation, or (iii) any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability actual or alleged liability of Seller specifically assumed defect in any product manufactured by Buyer under this Purchase Agreement;Purchaser after the Closing; and
(d) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment Related Expenses incident to any of the foregoing mattersforegoing; provided, however, that within sixty (60) days after learning of the assertion of any Third Party Claim against which Seller claims indemnification under this Section 10.4, Seller shall notify Purchaser and afford it the opportunity to assume the defense or settlement thereof at Purchaser's own expense with counsel of its choosing, and Seller shall cooperate fully to make available to Purchaser all pertinent information under its control or in its possession. Seller shall have the right to join in the defense of any such Third Party Claim with counsel of its own choosing and at its own expense.
Appears in 1 contract
Indemnification of Seller. In addition toFor a period of five (5) years after the Closing Date, Buyer covenants and not agrees with Seller that it shall reimburse and indemnify and hold Seller and its directors, officers, employees and agents (the "Seller Indemnified Parties") harmless from, against and in respect of any and all Claims incurred by way any of limitation of, Seller’s rights otherwise provided Seller Indemnified Parties that result from:
(a) any inaccuracy in or breach of any representations or warranties made by Buyer in this Purchase Agreement Agreement, the Schedules or in any other document delivered written statement, list, certificate or other instrument furnished to Seller by or on behalf of Buyer pursuant to this Agreement;
(b) any nonfulfillment of any covenant or agreement of Buyer under this Agreement;
(c) any fees, expenses or other payments incurred or owed by Buyer to any brokers or comparable third parties retained or employed by them or their affiliates in connection with the transactions contemplated hereby, or under applicable law, and subject to the terms and conditions of by this Article 7, Buyer agrees to defend, indemnify and hold harmless Seller and its subsidiaries and each of their respective directors, officers, employees, agents and Affiliates (collectively, the “Seller Group”) from and against any loss, liability, damage or expense suffered, incurred or paid by any member of the Seller Group after Closing:
(a) which would not have been suffered, incurred or paid if all the representations, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreements, or in any other instrument or document furnished to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;
(b) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arises, in whole or in part, out of or in connection with Buyer’s conduct of the Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement;
(d) any and all amounts paid or payable by Seller under that certain Corporate Guaranty dated as a result of any claimSeptember 12, action or proceeding asserted or brought against any member 2001 by Seller to General Electric Capital Corporation ("GE Capital") relating to Company's obligations under that certain Master Lease Agreement dated as of September 12, 2001 between Company and GE Capital (the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities"GE Lease");
(e) as a result of any claimpayments or accruals for salaries, action wages, bonuses, or proceeding asserted vacation to Company employees relating to and incurred with respect to the periods on or brought against any member of prior to the Seller Group Closing Date, whether or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become not due or shall accrue after payable on or prior to the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; andDate;
(f) for all costs and any severance obligations to Company employees, if any, that are terminated by Company or Buyer any time after the Closing;
(g) any claims made by a third party alleging facts which, if true, would entitle Seller to indemnification pursuant to (a) through (e) above;
(h) any failure of Buyer to comply with its obligations under this Section 8.2; or
(i) any fees or expenses (including, including without limitation, reasonable attorneys’ ' fees) incurred by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing mattersenforcing its rights hereunder.
Appears in 1 contract
Samples: Purchase Agreement (Spire Corp)
Indemnification of Seller. In addition to, and not by way of limitation of, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with the transactions contemplated hereby, or under applicable law, and subject (a) Subject to the terms and conditions of this Article 7, Buyer Purchaser hereby agrees to defendindemnify, indemnify defend and hold harmless each of Seller and its subsidiaries and each of their respective officers, directors, officersagents, employeesattorneys and affiliates harmless from and against all losses, agents obligations, assessments, penalties, liabilities, costs, damages, reasonable attorneys' fees and Affiliates expenses (collectively, the “"Damages") asserted against or incurred by Seller Group”or such identified persons by reason of or resulting from (i) from and against a representation or warranty made by Purchaser or ADM in Article 3 being incorrect or untrue or (ii) a breach by Purchaser of any loss, liability, damage or expense suffered, incurred or paid by any member of the Seller Group after Closing:
(a) which would not have been suffered, incurred or paid if all the representations, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreements, covenant contained herein or in any other instrument of the agreements executed pursuant hereto or document furnished (iii) any failure by Purchaser to Seller in connection with pay, perform or otherwise discharge any of the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;Assumed Liabilities.
(b) as Subject to the terms and conditions of this Article 7, ADM hereby agrees to indemnify, defend and hold each of Seller and its officers, directors, agents, attorneys and affiliates harmless from and against all Damages asserted against or incurred by Seller or such identified persons by reason of or resulting from (i) a result representation or warranty made by ADM in Article 3 being incorrect or untrue or (ii) a breach by ADM of any claim, action covenant made by ADM contained herein or proceeding asserted or brought against in any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arises, in whole or in part, out of or in connection with Buyer’s conduct of the Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder);agreements executed pursuant hereto.
(c) as a result Seller agrees to cooperate with Purchaser and ADM in the event of any claim, action settlement negotiated by Purchaser or proceeding asserted against any member of ADM with regard to the Seller Group or any of such member’s assets with respect indemnification provided herein. In no event shall the total amount payable pursuant to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement;
(dSection 7.2(c) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due incorrectness of a representation or warranty exceed the Purchase Price or with respect to become due, accrued a breach of a covenant or contingent, known or unknown and including agreement exceed the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member sum of the Seller Group or any of such member’s assets which arises out of or in connection Purchase Price plus the net profit earned by Purchaser with Buyer’s failure respect to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any operation of the Purchased Assets; and
Assets (f) for including all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident rights granted to any of the foregoing mattersPurchaser hereunder).
Appears in 1 contract
Indemnification of Seller. In addition toSubject to Section 11.C and upon Seller's written request, Dealer shall:
1. Defend Seller against any and not by way all claims that during the term of limitation ofthis Agreement may arise, Seller’s rights otherwise provided in this Purchase Agreement commense or be asserted against Seller in any other document delivered in connection with the transactions contemplated hereby, action concerning or under applicable law, and subject to the terms and conditions of this Article 7, Buyer agrees to defend, indemnify and hold harmless Seller and its subsidiaries and each of their respective directors, officers, employees, agents and Affiliates (collectively, the “Seller Group”) from and against any loss, liability, damage or expense suffered, incurred or paid by any member of the Seller Group after Closingalleging:
(a) which would not have been suffered, incurred or paid if all the representations, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreements, or in any other instrument or document furnished Dealer's failure to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;
(b) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arisescomply, in whole or in part, out with any obligation of Dealer under this Agreement;
(b) Any negligence, error, omission or act of Dealer in connection with Buyer’s conduct the preparation, repair or service (including warranty service, goodwill adjustments, and campaign inspections and corrections) by Dealer of Nissan Products;
(c) Any modification or alteration made by or on behalf of Dealer to a Nissan Product, except those made pursuant to the Business after express written instruction or with the Closingexpress written approval of Seller;
(d) Dealer's breach of any agreement between Dealer and Dealer's customer or other third party;
(e) Misleading, libelous or tortious statements, misrepresentations or deceptive or unfair practices by Dealer, directly or indirectly, to Seller, a customer or other third party including, without limitation, any claim, action or proceeding relating to Buyer’s Dealer's failure to perform under any agreement or commitment, the termination comply with Section 6.B of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder)this Agreement;
(cf) as a result Dealer's breach of any claimcontract or warranty other than a contract with or warranty of Seller or the manufacturer of a Nissan Product; or
(g) Any change in the employment status or in the terms of employment of any officer, action employee or proceeding asserted against agent of Dealer or of any member Principal Owner, Other Owner or Executive Manager including but not limited to, claims for breach of the employment contract, wrongful termination or discharge, tortious interference with contract or economic advantage, and similar claims; and
2. Indemnify and hold Seller Group or harmless from any of such member’s assets and all settlements made and final judgments rendered with respect to any liability claims described in Section 11.B.1; provided, however, that Dealer shall have no obligation to indemnify or alleged liability of hold Seller specifically assumed by Buyer under this Purchase Agreement;
harmless unless Seller: (di) as a result of any claim, action or proceeding asserted or brought against any member promptly notifies Dealer of the Seller Group or any assertion of such member’s assets which arises out of, or claim and the commencement of such action against Seller; (ii) cooperates fully in connection with, Buyer’s failure the defense of such action in such manner and to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect such extent as Dealer may reasonably required; (iii) consents to the Businessemployment of attorneys selected by Dealer and agrees to waive any conflict of interest then existent or which may later arise, whether due or thereby enabling Dealer's selected attorneys to become due, accrued or contingent, known or unknown and including represent Dealer throughout the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member defense of the Seller Group or claim; and (iv) withdraws any of such member’s assets which arises actions (including cross-claims) filed against Dealer arising out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge the circumstances for which Seller seeks indemnity. Seller shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for pay all costs of its own defense incurred prior to Dealer's assumption of Seller's defense and expenses (including, without limitation, reasonable attorneys’ fees) incurred thereafter to the extent that Seller employs attorneys in addition to those selected by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing mattersDealer.
Appears in 1 contract
Samples: Dealer Sales & Service Agreement (Lithia Motors Inc)
Indemnification of Seller. In addition toSubject to Section 11.C and upon Seller's written request, Dealer shall:
1. Defend Seller against any and not by way all claims that during the term of limitation ofthis Agreement may arise, Seller’s rights otherwise provided in this Purchase Agreement commence or be asserted against Seller in any other document delivered in connection with the transactions contemplated hereby, action concerning or under applicable law, and subject to the terms and conditions of this Article 7, Buyer agrees to defend, indemnify and hold harmless Seller and its subsidiaries and each of their respective directors, officers, employees, agents and Affiliates (collectively, the “Seller Group”) from and against any loss, liability, damage or expense suffered, incurred or paid by any member of the Seller Group after Closingalleging:
(a) which would not have been suffered, incurred or paid if all the representations, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreements, or in any other instrument or document furnished Dealer's failure to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;
(b) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arisescomply, in whole or in part, out with any obligation of Dealer under this Agreement;
(b) Any negligence, error, omission or act of Dealer in connection with Buyer’s conduct the preparation, repair or service (including warranty service, goodwill adjustments, and campaign inspections and corrections) by Dealer of Nissan Products;
(c) Any modification or alteration made by or on behalf of Dealer to a Nissan Product, except those made pursuant to the Business after express written instruction or with the Closingexpress written approval of Seller;
(d) Dealer's breach of any agreement between Dealer and Dealer's customer or other third party;
(e) Misleading, libelous or tortious statements, misrepresentations or deceptive or unfair practices by Dealer, directly or indirectly, to Seller, a customer or other third party including, without limitation, any claim, action or proceeding relating to Buyer’s Dealer's failure to perform under any agreement or commitment, the termination comply with Section 6.B of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder)this Agreement;
(cf) as a result Dealer's breach of any claimcontract or warranty other than a contract with or warranty of Seller or the manufacturer of a Nissan Product; or
(g) Any change in the employment status or in the terms of employment of any officer, action employee or proceeding asserted against agent of Dealer or of any member Principal Owner, Other Owner or Executive Manager including but not limited to, claims for breach of the employment contract, wrongful termination or discharge, tortious interference with contract or economic advantage, and similar claims; and
2. Indemnify and hold Seller Group or harmless from any of such member’s assets and all settlements made and final judgments rendered with respect to any liability claims described in Section 11.B.1; provided, however, that Dealer shall have no obligation to indemnify or alleged liability of hold Seller specifically assumed by Buyer under this Purchase Agreement;
harmless unless Seller: (di) as a result of any claim, action or proceeding asserted or brought against any member promptly notifies Dealer of the Seller Group or any assertion of such member’s assets which arises out of, or claim and the commencement of such action against Seller; (ii) cooperates fully in connection with, Buyer’s failure the defense of such action in such manner and to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect such extent as Dealer may reasonably require; (iii) consents to the Businessemployment of attorneys selected by Dealer and agrees to waive any conflict of interest then existent or which may later arise, whether due or thereby enabling Dealer's selected attorneys to become due, accrued or contingent, known or unknown and including represent Dealer throughout the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member defense of the Seller Group or claim; and (iv) withdraws any of such member’s assets which arises actions (including cross-claims) filed against Dealer arising out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge the circumstances for which Seller seeks indemnity. Seller shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for pay all costs of its own defense incurred prior to Dealer's assumption of Seller's defense and expenses (including, without limitation, reasonable attorneys’ fees) incurred thereafter to the extent that Seller employs attorneys in addition to those selected by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing mattersDealer.
Appears in 1 contract
Samples: Sales and Service Agreement (Firstamerica Automotive Inc /De/)
Indemnification of Seller. In addition toPurchaser and, following the Closing, the Companies, hereby agree, jointly and not by way of limitation ofseverally, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with the transactions contemplated herebyto indemnify, or under applicable law, and subject to the terms and conditions of this Article 7, Buyer agrees to defend, indemnify defend and hold harmless Seller Sellers and its subsidiaries and each of their respective officers, directors, officersshareholders, managers, members, employees, agents independent contractors, agents, successors and Affiliates assigns (collectively, the “"Seller Group”Parties") for, from and against any lossand all liabilities, liabilitylosses, damage costs or expense suffered, incurred or paid by expenses which any member of the Seller Group after ClosingParties may suffer or for which any of the Seller Parties may become liable and which are based on, the result of, arise out of or are otherwise related to any of the following:
(a) which would not have been sufferedany inaccuracy or misrepresentation in, incurred or paid if all the representationsbreach of any representation or warranty of Purchaser contained in, warranties, covenants and agreements of Buyer in this Purchase Agreement, any of the Related AgreementsAttendant Documents or any certificate, schedule, list or in any other instrument to be furnished by Purchaser to Sellers pursuant to this Agreement or document furnished to Seller in connection with any of the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilledAttendant Documents;
(b) as a result any breach or failure of Purchaser to perform any claim, action covenant or proceeding asserted agreement required to be performed by Purchaser pursuant to this Agreement or brought any of the Attendant Documents; and
(c) any Third Party Claim against any member of the Seller Group or any of such member’s assets (includingParties resulting from, without limitation, the Purchased Assets) which arises, in whole or in part, arising out of or in connection with Buyer’s conduct any way related to (i) the failure of Purchaser to perform, pay or discharge any assumed liability, or (ii) the operation of the DFI Business, the DFI Alabama Business and the DIA Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement;; and
(d) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment Related Expenses incident to any of the foregoing mattersforegoing. provided, however, that within 60 days after learning of the assertion of any Third Party Claim against which Sellers claim indemnification under this Section 9.2, Sellers shall notify Purchaser and afford it the opportunity to assume the defense or settlement thereof at Purchaser's own expense with counsel of its choosing, and Seller shall cooperate fully to make available to Purchaser all pertinent information under their control or in their possession, provided that Purchaser shall not settle any such claim without the prior written consent of Sellers, which consent shall not be unreasonably withheld. Purchaser shall not be obligated to indemnify Sellers for any Related Expenses incurred by Sellers in connection with such claim after Purchaser assumes its defense, except to the extent those Related Expenses are incurred by Sellers at Purchaser's request.
Appears in 1 contract
Samples: Purchase Agreement (Bingham Financial Services Corp)
Indemnification of Seller. In addition toBuyer shall indemnify, and not by way of limitation of, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with the transactions contemplated hereby, or under applicable law, and subject to the terms and conditions of this Article 7, Buyer agrees to defend, indemnify defend and hold harmless Seller and its subsidiaries Affiliates and each of their respective officers, directors, officers, employees, agents agents, advisors and Affiliates representatives (collectively, the “Seller Group”"SELLER INDEMNITEES") harmless from and against any lossand all costs, liabilityexpenses, damage or expense sufferedlosses, incurred or paid by any member of the Seller Group after Closing:
(a) which would not have been suffered, incurred or paid if all the representations, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreementsdamages, or in any other instrument or document furnished to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;
(b) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arises, in whole or in part, out of or in connection with Buyer’s conduct of the Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement;
(d) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses liabilities (including, without limitation, reasonable attorneys’ fees' fees and expenses) ("SELLER DAMAGES") suffered, sustained, incurred or paid by any member of the Seller Group Indemnitee in connection with any actionwith, proceedingresulting from, claim, assessment or judgment incident to arising out of:
(a) a breach or violation of any of the foregoing mattersrepresentations or warranties of Buyer contained in this Agreement or in any Buyer Document delivered pursuant hereto;
(b) a breach or violation of any of the covenants or agreements of Buyer contained in this Agreement or in any Buyer Document delivered pursuant hereto;
(c) any liability or obligation arising out of the Assumed Liabilities;
(d) except to the extent that any such Seller Damages relate to a pre-Closing matter for which Buyer would be entitled to indemnification from Seller pursuant to SECTION 13.1, the operation of the Business by Buyer, or Buyer's ownership, use or operation (or failure to operate) of the Purchased Assets after the Closing Date; or
(e) any liabilities arising out of events occurring after the Closing relating to any Transferred Employees other than those expressly retained herein by Seller; or
(f) any liability or obligation arising out of any Letters of Credit after the Closing.
Appears in 1 contract
Samples: Asset Sale and Purchase Agreement (Orbital Sciences Corp /De/)
Indemnification of Seller. In addition to(a) Subject to the limitations set forth in Sections 7.2, 8.1, 8.5, 8.6, and not by way of limitation of8.7, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with the transactions contemplated hereby, or under applicable law, and subject to the terms and conditions of this Article 7, Buyer Seller hereby agrees to defend, indemnify and hold harmless Seller Buyer and its subsidiaries affiliates and each of their respective directorsemployees, officers, employeesmanagers, agents members and Affiliates directors (collectively, the each a “Seller GroupBuyer Indemnified Party”) harmless from and against any lossand all claims, liabilitydemands, damage or expense sufferedsuits, incurred or paid by any member of the Seller Group after Closing:
(a) which would not have been sufferedproceedings, incurred or paid if all the representationsjudgments, warrantieslosses, covenants and agreements of Buyer in this Purchase Agreementliabilities, the Related Agreementsdamages, or in any other instrument or document furnished to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;
(b) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arises, in whole or in part, out of or in connection with Buyer’s conduct of the Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement;
(d) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses (including, without limitationbut not limited to, reasonable attorneys’ fees) (collectively, “Losses”) imposed upon or incurred by any member Buyer Indemnified Party as a result of the Seller Group or in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing mattersfollowing:
(i) any breach of a representation or warranty made by Seller in Article III of this Agreement or in the certificate delivered by Seller pursuant to Section 6.4(a)(ii);
(ii) the breach of, or default in the performance by Seller of, any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or any agreement or instrument executed in connection herewith or pursuant hereto;
(iii) the Excluded Assets or the Retained Liabilities; or
(iv) any responsibility for any offsite transportation, treatment, storage or disposal by Sellers of Hazardous Substances produced from the Assets. Buyer covenants that it shall not solicit third parties to commence any proceedings or make any claims against Buyer or any affiliate of a Buyer for which a Buyer Indemnified Party would be entitled to indemnification under this Section 8.2 and shall not disclose any information with the intent of soliciting third parties to commence such proceedings or make such claims.
(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 claim by a Buyer Indemnified Party for indemnification under this Section 8.2 (a “Buyer Claim”), 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 its obligations hereunder unless and 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 its receipt of a 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 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 without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), except as provided in Section 8.4. 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. If Seller elects to control the defense of any 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.
(c) Except as provided in Section 8.4, if Seller does not control the defense of any Action or Buyer Claim, then Buyer Indemnified Party may settle such Action or Buyer Claim only with the prior written consent of Seller Indemnifying Party (not to be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Indemnification of Seller. In addition to, and not by way of limitation of, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with the transactions contemplated hereby, or under applicable law, and subject (a) Subject to the terms provisions of this Section 7.03 and conditions the other Sections of this Article 7, Buyer agrees to defendfollowing the Closing, indemnify and hold harmless Seller and its subsidiaries and each of their respective directorsits Affiliates, officers, employeesdirectors, stockholders, controlling Persons, Representatives, employees and agents and Affiliates (collectively, the each hereinafter a “Seller GroupIndemnified Party”) shall be indemnified by Purchaser from and against the amount of any loss, liability, damage or expense suffered, Losses incurred or paid sustained by any member of the Seller Group after Closingor imposed upon them with respect to or by reason of:
(ai) which would not have been suffered, incurred any breach or paid if all the representations, warranties, covenants and agreements inaccuracy of Buyer in any representation or warranty made by Purchaser under this Purchase Agreement, the Related Agreements, Agreement or in any other instrument agreement or document furnished to Seller certificate delivered by or on behalf of Purchaser in connection with the transactions contemplated hereby had been Closing;
(ii) any breach by Purchaser of any of its covenants or agreements under this Agreement or any agreement or certificate delivered by or on behalf of Purchaser in connection with respect the Closing;
(iii) the conduct of the operations and business of the Company or ownership of any assets of the Company after the Closing ;
(iv) the matters set forth in Section 9.03(b); and
(v) (A) all letters of credit as well as any performance, bid, maintenance and other bonds posted by Seller or its Affiliates in connection with projects, jobs and other commercial obligations of the Company outstanding as of the Closing, (B) all outstanding commitments by Seller or its Affiliates to representations cause additional letters of credit or bonds to be issued on behalf of or for the benefit of the Company pursuant to contract bids or proposals outstanding and warranties(C) trueall written guarantees of obligations of the Company by Seller or any of its Affiliates; provided, complete that the foregoing (A), (B) and correct (C) shall in no manner limit the rights of Purchaser to indemnification hereunder or otherwise in connection with claims against Seller arising out of issues with the contracts and had been (with respect to covenants other obligations of the Company underlying such letters of credit, bonds, commitments and agreements) fully performed and fulfilled;guarantees.
(b) as a result of any claimNotwithstanding anything to the contrary in this Agreement, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased AssetsIndemnified Parties shall not be entitled to indemnification under Section 7.03(a) which arises, in whole or in part, out of or in connection with Buyer’s conduct of the Business after the Closing, including, without limitation, any claim, action or proceeding relating to Buyer’s failure to perform under any agreement or commitment, the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability a claim for indemnification under Section 7.03(a)(i) hereof unless the applicable Seller Indemnified Party has provided Purchaser written notice of Seller specifically assumed by Buyer under this Purchase Agreement;
(d) as a result of any such claim, action or proceeding asserted or brought against any member setting forth in reasonable detail the facts and circumstances pertaining thereto prior to the expiration of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing mattersapplicable Survival Period.
Appears in 1 contract
Indemnification of Seller. In addition toSubject to Section 11.C and upon Seller's written request, Dealer shall:
1. Defend Seller against any and not by way all claims that during the term of limitation ofthis Agreement may arise, Seller’s rights otherwise provided in this Purchase Agreement commense or be asserted against Seller in any other document delivered in connection with the transactions contemplated hereby, action concerning or under applicable law, and subject to the terms and conditions of this Article 7, Buyer agrees to defend, indemnify and hold harmless Seller and its subsidiaries and each of their respective directors, officers, employees, agents and Affiliates (collectively, the “Seller Group”) from and against any loss, liability, damage or expense suffered, incurred or paid by any member of the Seller Group after Closingalleging:
(a) which would not have been suffered, incurred or paid if all the representations, warranties, covenants and agreements of Buyer in this Purchase Agreement, the Related Agreements, or in any other instrument or document furnished Dealer's failure to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilled;
(b) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arisescomply, in whole or in part, out with any obligation of Dealer under this Agreement;
(b) Any negligence, error, omission or act of Dealer in connection with Buyer’s conduct the preparation, repair or service (including warranty service, goodwill adjustments, and campaign inspections and corrections) by Dealer of Nissan Products;
(c) Any modification or alteration made by or on behalf of Dealer to a Nissan Product, except those made pursuant to the Business after express written instruction or with the Closingexpress written approval of Seller;
(d) Dealer's breach of any agreement between Dealer and Dealer's customer or other third party;
(e) Misleading, libelous or tortious statements, misrepresentations or deceptive or unfair practices by Dealer, directly or indirectly, to Seller, a customer or other third party including, without limitation, any claim, action or proceeding relating to Buyer’s Dealer's failure to perform under any agreement or commitment, the termination comply with Section 6.B of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever in connection with the purchase or use of any Purchased Asset sold by Seller to Buyer hereunder)this Agreement;
(cf) as a result Dealer's breach of any claimcontract or warranty other than a contract with or warranty of Seller or the manufacturer of a Nissan Product; or
(g) Any change in the employment status or in the terms of employment of any officer, action employee or proceeding asserted against agent of Dealer or of any member Principal Owner, Other Owner or Executive Manager including but not limited to, claims for breach of the employment contract, wrongful termination or discharge, tortious interference with contract or economic advantage, and similar claims; and
2. Indemnify and hold Seller Group or harmless from any of such member’s assets and all settlements made and final judgments rendered with respect to any liability claims described in Section 11.B.1; provided, however, that Dealer shall have no obligation to indemnify or alleged liability of hold Seller specifically assumed by Buyer under this Purchase Agreement;
harmless unless Seller: (di) as a result of any claim, action or proceeding asserted or brought against any member promptly notifies Dealer of the Seller Group or any assertion of such member’s assets which arises out of, or claim and the commencement of such action against Seller; (ii) cooperates fully in connection with, Buyer’s failure the defense of such action in such manner and to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect such extent as Dealer may reasonably require; (iii) consents to the Businessemployment of attorneys selected by Dealer and agrees to waive any conflict of interest then existent or which may later arise, whether due or thereby enabling Dealer's selected attorneys to become due, accrued or contingent, known or unknown and including represent Dealer throughout the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member defense of the Seller Group or claim; and (iv) withdraws any of such member’s assets which arises actions (including cross-claims) filed against Dealer arising out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge the circumstances for which Seller seeks indemnity. Seller shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for pay all costs of its own defense incurred prior to Dealer's assumption of Seller's defense and expenses (including, without limitation, reasonable attorneys’ fees) incurred thereafter to the extent that Seller employs attorneys in addition to those selected by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing mattersDealer.
Appears in 1 contract
Samples: Dealer Sales and Service Agreement (United Auto Group Inc)
Indemnification of Seller. In addition to, From and not by way of limitation of, Seller’s rights otherwise provided in this Purchase Agreement or in any other document delivered in connection with after the transactions contemplated hereby, or under applicable law, and subject to the terms and conditions of this Article 7Closing, Buyer agrees to defendindemnify, indemnify defend and hold harmless save Seller and its subsidiaries and each of their respective directors, officers, employees, owners, agents and Affiliates and their successors and assigns or heirs and personal representatives, as the case may be (collectivelyeach, the “a "Seller Group”Indemnified Party") harmless from and against against, and to promptly pay to a Seller Indemnified Party or reimburse a Seller Indemnified Party for, any lossand all Losses sustained or incurred by such Seller Indemnified Party relating to, liability, damage caused by or expense suffered, incurred or paid by any member of the Seller Group after Closingresulting from:
(a) which would not have been suffered, incurred Any breach or paid if all the representations, warranties, covenants and agreements inaccuracy of any representation or warranty made by Buyer in this Purchase Agreement, the Related Agreements, contained herein or in any certificate, schedule, document or other instrument or document furnished to Seller in connection with the transactions contemplated hereby had been (with respect to representations and warranties) true, complete and correct and had been (with respect to covenants and agreements) fully performed and fulfilledwriting delivered by Buyer pursuant hereto;
(b) as a result of Any breach of, or failure to fulfill or satisfy, any claim, action covenant or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets (including, without limitation, the Purchased Assets) which arises, in whole agreement made by Buyer contained herein or in partany certificate, schedule, document or other writing delivered by Buyer pursuant hereto; and
(c) Arising out of or relating to any untrue or alleged untrue statement of a material fact contained in connection with Buyer’s conduct the Registration Statement, any prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the Business after circumstances under which they were made) not misleading, except to the Closingextent, includingbut only to the extent, without limitation, any claim, action that such untrue statements or proceeding relating to Buyer’s failure to perform under any agreement or commitment, omissions are based solely upon information regarding the termination of any employee, agent, dealer or distributor or any breach of warranty (including, without limitation, any claim, action or proceeding arising at any time whatsoever Seller provided in connection with the purchase or use of any Purchased Asset sold writing by Seller to Buyer hereunder);
(c) as a result of any claim, action or proceeding asserted against any member of the Seller Group or any of such member’s assets with respect to any liability or alleged liability of Seller specifically assumed by Buyer under this Purchase Agreement;
(d) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of, or in connection with, Buyer’s failure to pay, promptly and when due, any amount owing, in whole or in part accruing after the Closing with respect to the Business, whether due or to become due, accrued or contingent, known or unknown and including the Assumed Liabilities;
(e) as a result of any claim, action or proceeding asserted or brought against any member of the Seller Group or any of such member’s assets which arises out of or in connection with Buyer’s failure to pay, promptly and when due, any Tax, fee or other charge which shall become due or shall accrue after the Closing on account of Buyer’s ownership or sale of any of the Purchased Assets; and
(f) for all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by any member of the Seller Group in connection with any action, proceeding, claim, assessment or judgment incident to any of the foregoing mattersinclusion therein.
Appears in 1 contract
