Indemnification of Sellers. Each of the Buyers, jointly and severally, agrees to defend, indemnify, and hold harmless Sellers and their respective successors and assigns (individually, a "Seller Indemnitee" and collectively, the "Sellers Indemnitees"), against and in respect of: (a) any and all Losses to any third party caused by, resulting or arising from, or otherwise relating to: (i) any failure of either Buyer to perform or otherwise fulfill or comply with any undertaking or other agreement or obligation hereunder to be performed, fulfilled, or otherwise complied with by Buyer before, on, or after the Closing Date; or (ii) the inaccuracy or breach of any of the representations, warranties or covenants made by Buyer in this Agreement, but only if the claim or demand for such indemnification is asserted prior to the date upon which such representation or warranty expires pursuant to Article 5; or (iii) any and all liabilities or obligations of the Partnership that accrue or arise in the course of the operation of the business of the Partnership after the Closing Date, (iv) any and all liabilities or obligations of the Partnership with respect to the installation and operation of the Fish Lift, regardless of whether such liabilities or obligations accrued or arose before or after the Closing Date. (b) any and all Damages, including reasonable attorneys' fees (whether or not incurred by Sellers or any Affiliate of Sellers in connection with any action, suit, proceeding, or claim against a Buyer hereunder), incident to any of the foregoing or such indemnification; provided, however, that if any Damages are asserted against any Seller Indemnitee in respect of which such Seller Indemnitee proposes to demand indemnification, such Seller Indemnitee shall notify Buyers thereof within a reasonable period of time after assertion thereof. Subject to rights of or duties to any insurer or other third person having liability therefor, Buyers shall have the right after acknowledging to the applicable Seller Indemnitee its liability therefor within ten (10) days after receipt of such notice to assume the control of the defense, compromise, or settlement of any such Damages, including, at its own expense, employment of counsel and at any time thereafter to exercise on behalf of Seller Indemnitee any rights that may mitigate any of such Damages; provided, however, that if any Buyer exercises its right to assume such control, Seller Indemnitee: (i) may, in its sole discretion, employ counsel to represent it (in addition to counsel employed by Buyer, and in the latter case, at Seller Indemnitee's sole expense) in any such matter, and in such event counsel selected by Buyer shall be required to cooperate with such counsel of Seller Indemnitee in such defense, compromise, or settlement for the purpose of informing and sharing information with such Seller Indemnitee, and (ii) will, at its own expense, make available to Buyer those employees of Sellers or any Affiliate of Sellers whose assistance, testimony, or presence is necessary to assist Buyer in evaluating and in defending any such Damages; provided, however, that any such availability shall be provided in such a manner as not to interfere unreasonably with the operations of the businesses of Sellers and their Affiliates. (c) In the event that no fine is assessed against the Partnership as of December 31, 2005 for its failure to construct an operational fish passage facility at the Project on or prior to May 1, 2005, the amount of Eighteen Thousand Dollars ($18,000) that has been deducted from the Purchase Price hereunder as a credit towards the payment of such fine by the Partnership to the Kennebec River Restoration Fund, which shall be refunded to the Sellers on or before January 16, 2006.
Appears in 1 contract
Indemnification of Sellers. Each of From and after the BuyersClosing Date, jointly and severally, agrees to Buyex xxxll defend, indemnify, indemnify and hold harmless Sellers from and their respective successors and assigns (individually, a "Seller Indemnitee" and collectively, the "Sellers Indemnitees"), against and in respect ofagainst:
(a) any and all Losses to any third party caused by, resulting or arising from, or otherwise relating to:
(i) any failure of either Buyer to perform or otherwise fulfill or comply with any undertaking or other agreement or obligation hereunder to be performed, fulfilled, or otherwise complied with by Buyer before, on, or after the Closing Date; or
(ii) the inaccuracy or breach of any of the representations, warranties or covenants made by Buyer in this Agreement, but only if the claim or demand for such indemnification is asserted prior to the date upon which such representation or warranty expires pursuant to Article 5; or
(iii) any and all liabilities or obligations of the Partnership that accrue Company disclosed in this Agreement or arise in the course of Financial Statements or the operation of the business of the Partnership after the Closing Date,
(iv) any and all liabilities or obligations of the Partnership with respect to the installation and operation of the Fish LiftMarch 31, regardless of whether such liabilities or obligations accrued or arose before or after the Closing Date.1997 compilation;
(b) any and all Damagesdamages, losses and liabilities resulting from or relating to the Company and/or Operational Matters arising after the Closing Date including, without limitation, all liabilities arising from the provision, shipment, sale, lease or rental after the Closing Date of Products, and services of the -35- 40 Company (excluding liabilities arising from or relating to the service, maintenance and repair of Products on or prior to the Closing Date), whether accrued, absolute, contingent or otherwise;
(c) excluding what is covered by Sections 9.2(a) and 9.2(b) above, any and all damages, losses and liabilities whatsoever resulting from any misrepresentation or any breach of any warranty or nonfulfillment of any covenant or agreement on the part of Buyer hereunder, under any certificate or other instrument to be furnished under this Agreement, or under any of the Related Agreements and
(d) any and all actions, suits, claims, proceedings, investigations, audits, demands, assessments, fines, judgments, costs and other reasonable expenses (including reasonable attorneys' fees (whether legal fees) arising out of or not incurred by Sellers or any Affiliate of Sellers in connection with any action, suit, proceeding, or claim against a Buyer hereunder), incident to any of the foregoing or such indemnificationforegoing;
(e) any and all other obligations of the Company which Sellers are not responsible for pursuant to the terms of this Agreement;
(f) any and all actions, suits, claims, proceedings, investigations, audits, demands, assessments, fines, judgments, costs and other reasonable expenses (including reasonable legal fees) arising from Fargxxxx'x xxx Roccx'x xersonal guarantees of the Outstanding Debt; providedand
(g) any and all actions, howeversuits, that if any Damages are asserted claims, proceedings, investigations, audits, demands, assessments, fines, judgments, costs and other reasonable expenses (including reasonable legal fees) resulting from a litigation commenced against any Seller Indemnitee in respect by Prince arisxxx xxxm the execution of which such Seller Indemnitee proposes to demand indemnification, such Seller Indemnitee shall notify Buyers thereof within a reasonable period of time after assertion thereof. Subject to rights of this Agreement or duties to any insurer or other third person having liability therefor, Buyers shall have the right after acknowledging to the applicable Seller Indemnitee its liability therefor within ten (10) days after receipt of such notice to assume the control consummation of the defense, compromise, or settlement of any such Damages, including, at its own expense, employment of counsel and at any time thereafter to exercise on behalf of Seller Indemnitee any rights that may mitigate any of such Damages; provided, however, that if any Buyer exercises its right to assume such control, Seller Indemnitee:
(i) may, in its sole discretion, employ counsel to represent it (in addition to counsel employed by Buyer, and in the latter case, at Seller Indemnitee's sole expense) in any such matter, and in such event counsel selected by Buyer shall be required to cooperate with such counsel of Seller Indemnitee in such defense, compromise, or settlement for the purpose of informing and sharing information with such Seller Indemnitee, and
(ii) will, at its own expense, make available to Buyer those employees of Sellers or any Affiliate of Sellers whose assistance, testimony, or presence is necessary to assist Buyer in evaluating and in defending any such Damages; provided, however, that any such availability shall be provided in such a manner as not to interfere unreasonably with the operations of the businesses of Sellers and their Affiliatestransactions contemplated hereby.
(c) In the event that no fine is assessed against the Partnership as of December 31, 2005 for its failure to construct an operational fish passage facility at the Project on or prior to May 1, 2005, the amount of Eighteen Thousand Dollars ($18,000) that has been deducted from the Purchase Price hereunder as a credit towards the payment of such fine by the Partnership to the Kennebec River Restoration Fund, which shall be refunded to the Sellers on or before January 16, 2006.
Appears in 1 contract
Samples: Stock Purchase Agreement (Community Care Services Inc)
Indemnification of Sellers. Each of From and after the BuyersClosing Date, jointly and severally, agrees to Buyer shall defend, indemnify, indemnify and hold harmless Sellers from and their respective successors and assigns (individually, a "Seller Indemnitee" and collectively, the "Sellers Indemnitees"), against and in respect ofagainst:
(a) any and all Losses to any third party caused by, resulting or arising from, or otherwise relating to:
(i) any failure of either Buyer to perform or otherwise fulfill or comply with any undertaking or other agreement or obligation hereunder to be performed, fulfilled, or otherwise complied with by Buyer before, on, or after the Closing Date; or
(ii) the inaccuracy or breach of any of the representations, warranties or covenants made by Buyer in this Agreement, but only if the claim or demand for such indemnification is asserted prior to the date upon which such representation or warranty expires pursuant to Article 5; or
(iii) any and all liabilities or obligations of the Partnership that accrue Company disclosed in this Agreement or arise in the course of Financial Statements or the operation of the business of the Partnership after the Closing Date,
(iv) any and all liabilities or obligations of the Partnership with respect to the installation and operation of the Fish LiftMarch 31, regardless of whether such liabilities or obligations accrued or arose before or after the Closing Date.1997 compilation;
(b) any and all Damagesdamages, losses and liabilities resulting from or relating to the Company and/or Operational Matters arising after the Closing Date including, without limitation, all liabilities arising from the provision, shipment, sale, lease or rental after the Closing Date of Products, and services of the Company (excluding liabilities arising from or relating to the service, maintenance and repair of Products on or prior to the Closing Date), whether accrued, absolute, contingent or otherwise;
(c) excluding what is covered by Sections 9.2(a) and 9.2(b) above, any and all damages, losses and liabilities whatsoever resulting from any misrepresentation or any breach of any warranty or nonfulfillment of any covenant or agreement on the part of Buyer hereunder, under any certificate or other instrument to be furnished under this Agreement, or under any of the Related Agreements and
(d) any and all actions, suits, claims, proceedings, investigations, audits, demands, assessments, fines, judgments, costs and other reasonable expenses (including reasonable attorneys' fees (whether legal fees) arising out of or not incurred by Sellers or any Affiliate of Sellers in connection with any action, suit, proceeding, or claim against a Buyer hereunder), incident to any of the foregoing or such indemnificationforegoing;
(e) any and all other obligations of the Company which Sellers are not responsible for pursuant to the terms of this Agreement;
(f) any and all actions, suits, claims, proceedings, investigations, audits, demands, assessments, fines, judgments, costs and other reasonable expenses (including reasonable legal fees) arising from Xxxxxxxx'x and Rocco's personal guarantees of the Outstanding Debt; providedand
(g) any and all actions, howeversuits, that if any Damages are asserted claims, proceedings, investigations, audits, demands, assessments, fines, judgments, costs and other reasonable expenses (including reasonable legal fees) resulting from a litigation commenced against any Seller Indemnitee in respect by Prince arising from the execution of which such Seller Indemnitee proposes to demand indemnification, such Seller Indemnitee shall notify Buyers thereof within a reasonable period of time after assertion thereof. Subject to rights of this Agreement or duties to any insurer or other third person having liability therefor, Buyers shall have the right after acknowledging to the applicable Seller Indemnitee its liability therefor within ten (10) days after receipt of such notice to assume the control consummation of the defense, compromise, or settlement of any such Damages, including, at its own expense, employment of counsel and at any time thereafter to exercise on behalf of Seller Indemnitee any rights that may mitigate any of such Damages; provided, however, that if any Buyer exercises its right to assume such control, Seller Indemnitee:
(i) may, in its sole discretion, employ counsel to represent it (in addition to counsel employed by Buyer, and in the latter case, at Seller Indemnitee's sole expense) in any such matter, and in such event counsel selected by Buyer shall be required to cooperate with such counsel of Seller Indemnitee in such defense, compromise, or settlement for the purpose of informing and sharing information with such Seller Indemnitee, and
(ii) will, at its own expense, make available to Buyer those employees of Sellers or any Affiliate of Sellers whose assistance, testimony, or presence is necessary to assist Buyer in evaluating and in defending any such Damages; provided, however, that any such availability shall be provided in such a manner as not to interfere unreasonably with the operations of the businesses of Sellers and their Affiliatestransactions contemplated hereby.
(c) In the event that no fine is assessed against the Partnership as of December 31, 2005 for its failure to construct an operational fish passage facility at the Project on or prior to May 1, 2005, the amount of Eighteen Thousand Dollars ($18,000) that has been deducted from the Purchase Price hereunder as a credit towards the payment of such fine by the Partnership to the Kennebec River Restoration Fund, which shall be refunded to the Sellers on or before January 16, 2006.
Appears in 1 contract
Samples: Stock Purchase Agreement (Community Care Services Inc)
Indemnification of Sellers. Each of Subject to the Buyerslimitations set forth in Section 9.4 below, Purchaser and Parent shall jointly and severally, agrees to defend, severally indemnify, defend and hold harmless Sellers Sellers, and their respective successors Affiliates, and their respective officers, members, managers, successors, and assigns (individuallyhereinafter, a collectively, "Seller Indemnitee" and collectively, the "Sellers Indemnitees"), ) from and against and in respect of any and all Losses suffered or incurred by any Seller Indemnitee by reason of, or arising out of:
(a) any and all Losses misrepresentation, breach of representation or warranty, or nonfulfillment of any covenant or agreement of Purchaser or Parent contained in this Agreement;
(b) the Material Contracts (except, with respect to any third party caused byMaterial Contract where the Loss results from or arises out of any default, resulting or arising frombreach, misfeasance, malfeasance, or otherwise relating to:nonfeasance by the Company prior to the Closing under or with respect to such Material Contract); or
(c) any claims, liabilities, obligations, damages, costs, and expenses, known or unknown, fixed or contingent, claimed or demanded by third parties against Sellers to the extent arising out of or resulting from (i) the Company's operation or the conduct of the Business from and after the Closing, (ii) ownership or operation of the Company's or Metal Resources' assets and arising out of any failure of either Buyer to perform fact or otherwise fulfill or comply with any undertaking or other agreement or obligation hereunder to be performed, fulfilledoccurrence from and after the Closing, or otherwise complied with by Buyer before, on, (iii) any requirements or obligations that arise pursuant to the Consent Order and come due on or after the Closing Date; or
(ii) the inaccuracy or breach of any of the representations, warranties or covenants made by Buyer in this Agreement, but only if the claim or demand for such indemnification is asserted prior to the date upon which such representation or warranty expires pursuant to Article 5; or
(iii) any and all liabilities or obligations of the Partnership that accrue or arise in the course of the operation of the business of the Partnership after the Closing Date,
(iv) any and all liabilities or obligations of the Partnership with respect to the installation and operation of the Fish Lift, regardless of whether such liabilities or obligations accrued or arose before or after the Closing Date.
(b) any and all Damages, including reasonable attorneys' fees (whether or not incurred by Sellers or any Affiliate of Sellers in connection with any action, suit, proceeding, or claim against a Buyer hereunder), incident to any of the foregoing or such indemnification; provided, however, that if to the extent Losses result from the failure of the Company to comply with the requirements of the Consent Order prior to Closing, Purchaser's indemnification obligations hereunder shall be reduced to the extent such pre-Closing noncompliance resulted in (y) such post-Closing Losses, or (z) any Damages are asserted against any Seller Indemnitee additional requirements to be imposed upon the Company, Metal Resources, or Purchaser. For the purposes of this Agreement the term "Losses" shall mean, in respect of which such Seller Indemnitee proposes the indemnification obligations of any party pursuant to demand indemnificationthis Agreement, such Seller Indemnitee shall notify Buyers thereof within a any and all costs, losses, damages, liabilities, obligations, and other reasonable period of time after assertion thereof. Subject to rights of or duties to any insurer or other third person having liability thereforout-of-pocket expenses, Buyers shall have including without limitation interest, penalties, reasonable attorneys' fees, and all amounts paid in the right after acknowledging to the applicable Seller Indemnitee its liability therefor within ten (10) days after receipt of such notice to assume the control of the investigation, defense, compromise, or settlement of any such Damagesaction, includingclaim, at its own expensedemand, employment cause of counsel and at any time thereafter to exercise on behalf action, choses in action, right of Seller Indemnitee any rights that may mitigate any of such Damages; provided, however, that if any Buyer exercises its right to assume such control, Seller Indemnitee:
(i) may, in its sole discretion, employ counsel to represent it (in addition to counsel employed by Buyer, and in the latter case, at Seller Indemnitee's sole expense) in any such matter, and in such event counsel selected by Buyer shall be required to cooperate with such counsel of Seller Indemnitee in such defense, compromiserecovery, or settlement for the purpose right of informing and sharing information with such Seller Indemniteeset-off of whatever kind or description against any person, and
(ii) willsuit, at its own expenselitigation, make available to Buyer those employees of Sellers or any Affiliate of Sellers whose assistance, testimonyproceeding, or presence is necessary investigation actions relating to assist Buyer in evaluating and in defending any such Damages; provided, however, that any such availability shall be provided in such a manner as not to interfere unreasonably with the operations of the businesses of Sellers and their AffiliatesLosses.
(c) In the event that no fine is assessed against the Partnership as of December 31, 2005 for its failure to construct an operational fish passage facility at the Project on or prior to May 1, 2005, the amount of Eighteen Thousand Dollars ($18,000) that has been deducted from the Purchase Price hereunder as a credit towards the payment of such fine by the Partnership to the Kennebec River Restoration Fund, which shall be refunded to the Sellers on or before January 16, 2006.
Appears in 1 contract
Samples: Limited Liability Company Interest Purchase Agreement
Indemnification of Sellers. Each of (a) Subject to the Buyerslimitations contained in this Article IX, jointly and severally, Buyer agrees to defend, indemnify, defend and hold harmless Sellers and any of their respective Affiliates, and its and its Affiliates' directors, officers, employees, successors and assigns (individuallyeach, a "Seller Indemnitee" SELLER INDEMNIFIED PARTY") from and collectively, the "Sellers Indemnitees"), against and in respect of:
(a) any and all Losses to any third party caused bywhich arise out of, resulting or arising result from, or otherwise relating to:
relate to (i) any failure breach or inaccuracy of either any representation, warranty, covenant or agreement of Buyer to perform contained in this Agreement or otherwise fulfill or comply with any undertaking or other agreement or obligation hereunder to be performed, fulfilled, or otherwise complied with in the officer's certificate delivered by Buyer beforepursuant to Section 7.2(e) (which representations and warranties for purposes of this Section 9.3 shall be read as though none of them contained any materiality or Material Adverse Effect qualifier or exception), on(ii) any Assumed Liability, or (iii) Liabilities incurred by Buyer resulting from the operation of the Business on and after the Closing Date; or
, (iiiv) claims relating to any Owned Real Property arising on and after the inaccuracy Closing Date or breach of any of the representations, warranties or covenants (v) claims made by Buyer in this Agreement, but only if the claim or demand for such indemnification is asserted prior any other party to the date upon which such representation or warranty expires pursuant to Article 5; or
(iii) any a Real Property Lease on and all liabilities or obligations of the Partnership that accrue or arise in the course of the operation of the business of the Partnership after the Closing Date,
, in each case, in the case of clauses (iviii) - (v), to the extent such Liabilities and claims would otherwise constitute an Assumed Liability hereunder. In addition, Buyer agrees to indemnify, defend and hold harmless each of the Seller Indemnified Parties from and against any and all liabilities Losses and claims relating to any Business Employee as a result of or obligations in connection with any act or omission of the Partnership with respect to the installation and operation Buyer or any Affiliate of the Fish Lift, regardless of whether such liabilities or obligations accrued or arose before Buyer occurring on or after the Closing DateClosing.
(b) No claim may be made against Buyer for indemnification pursuant to Section 9.3(a)(i) with respect to any individual item of Loss arising from a breach or inaccuracy of any representation or warranty in this Agreement, unless the aggregate of all Losses of the Seller Indemnified Parties with respect such breaches exceeds 0.5% of the Final Purchase Price and then only to the extent of such excess, and in no event will Buyer's aggregate liability for such breaches and inaccuracies exceed $100,000,000.00. Notwithstanding the foregoing, none of the limitations set forth in this Section 9.3(b) shall apply to or otherwise limit the Seller Indemnified Parties' right to indemnification for all Damages, including reasonable attorneys' fees (whether or not incurred by Sellers or any Affiliate of Sellers in connection with any action, suit, proceedingLosses arising out of, or claim against a Buyer hereunder)resulting from, incident or relating to any breach or inaccuracy of the foregoing representations and warranties set forth in Section 5.2. Notwithstanding the foregoing, for purposes of determining whether Losses for which indemnification pursuant to Section 9.3(a)(i) is available exceed 0.5% of the Final Purchase Price, Buyer will not have any liability for such Losses unless the aggregate amount of such Losses relating to a single claim (or such indemnification; providedgroup of claims relating to the same or similar event, howeverfact or circumstance) exceeds $25,000.
(c) Each Seller Indemnified Party will give Buyer prompt written notice of any claim, that if any Damages are asserted against any Seller Indemnitee assertion, event or proceeding (collectively, a "SELLER CLAIM") by or in respect of a third party of which such Seller Indemnitee proposes Indemnified Party has knowledge concerning any Loss as to demand indemnification, which such Seller Indemnitee shall notify Buyers thereof within Indemnified Party may request indemnification hereunder. Any delay in the giving of such notice will not relieve Buyer of its indemnification obligations under Section 9.3(a) except to the extent that Buyer is actually damaged as a reasonable period result of time after assertion thereofsuch delay. Subject to rights of or duties to any insurer or other third person having liability therefor, Buyers shall Buyer will have the right after acknowledging to direct, through counsel of its own choosing, the applicable Seller Indemnitee its liability therefor within ten (10) days after receipt of such notice to assume the control of the defense, compromise, defense or settlement of any such Damages, including, Seller Claim at its own expense, employment of counsel and at any time thereafter to exercise on behalf of Seller Indemnitee any rights that may mitigate any of such Damages; provided, however, that if any . If Buyer exercises its right elects to assume such control, Seller Indemnitee:
(i) may, in its sole discretion, employ counsel to represent it (in addition to counsel employed by Buyer, and in the latter case, at Seller Indemnitee's sole expense) in defense of any such matterSeller Claim, and in such event counsel selected by Buyer shall be required to cooperate with such counsel of Seller Indemnitee Indemnified Party may participate in such defense, compromisebut in such case the expenses of such Seller Indemnified Party will be paid by such Seller Indemnified Party. If and to the extent reasonably requested by Buyer, such Seller Indemnified Party will provide Buyer with access to its records and personnel relating to any such Seller Claim during normal business hours and will otherwise cooperate with Buyer in the defense or settlement thereof, and Buyer will reimburse such Seller Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If Buyer elects to direct the defense of any such Seller Claim, (i) such Seller Indemnified Party will not pay, or settlement for permit to be paid, any part of any Loss claimed by the purpose third party claimant in respect of informing and sharing information with such Seller IndemniteeClaim, and
unless (1) Buyer consents in advance in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned), (2) Buyer, subject to the last sentence of this Section 9.2y(c), withdraws from the defense of such asserted liability or (3) the Seller Indemnified Party is so ordered or directed by a Governmental Authority or arbitral authority (which order or direction is not stayed) or a final judgment from which no appeal may be taken by or on behalf of Buyer is entered against the Seller Indemnified Party for such Loss and (ii) will, at its own expense, make available Buyer will not enter into any settlement or compromise of such Seller Claim that does not include as a unconditional term thereof the giving by the claimant or plaintiff to Buyer those employees the Seller Indemnified Parties a full release of Sellers or any Affiliate of Sellers whose assistance, testimony, or presence is necessary all liability with respect to assist Buyer in evaluating and in defending any such Damages; provided, however, that any such availability shall be provided in such a manner as not to interfere unreasonably with the operations subject matter of the businesses of Sellers and their Affiliates.
(c) In Seller Claim or that involves any term or condition applicable to the event that no fine is assessed against the Partnership as of December 31, 2005 for its failure to construct an operational fish passage facility at the Project on or prior to May 1, 2005, the amount of Eighteen Thousand Dollars ($18,000) that has been deducted from the Purchase Price hereunder as a credit towards Seller Indemnified Parties other than the payment of money by Buyer, without the prior written consent of Parent. If Buyer fails to defend any Seller Claim, or if, after commencing or undertaking any such fine by defense, fails to prosecute or withdraws from such defense, such Seller Indemnified Party will have the Partnership right to undertake the Kennebec River Restoration Funddefense or settlement thereof, at Buyer's expense. If such Seller Indemnified Party assumes the defense of any such Seller Claim and proposes to settle such Seller Claim prior to a final judgment thereon or to forego appeal with respect thereto, then such Seller Indemnified Party will give Buyer prompt written notice thereof and Buyer will have the right to participate in the settlement or assume or reassume the defense of such Seller Claim. The foregoing provisions of this Section 9.3(c) will not apply to Tax Matters, which shall instead be refunded to the Sellers on or before January 16, 2006governed by Section 8.3(d).
Appears in 1 contract
Indemnification of Sellers. Each of the Buyers, jointly and severally, Buyer agrees to defend, indemnify, indemnify and hold harmless Sellers and their respective successors and assigns (individually, individually a "“Seller Indemnitee" ,” and collectively, collectively the "Sellers “Seller Indemnitees")”) from, against and in respect ofof the following:
(a) any and all Losses to any third party losses, damages, deficiencies or liabilities caused by, resulting or arising from, from or otherwise relating to:
to (i) any breach of the representations and warranties of Buyer contained in this Agreement or in any instrument, certificate or affidavit delivered by or on behalf of Buyer at the Closing in accordance with this Agreement; (ii) any failure of either by Buyer to perform or otherwise fulfill or comply with: (X) if this Agreement shall have been terminated, Section 6.3 or any other covenant, undertaking, agreement or obligation to be performed, fulfilled or complied with by Buyer prior to or in connection with the Closing; or (Y) if the Closing shall occur, any covenant, undertaking or other agreement or obligation hereunder to be performed, fulfilled, fulfilled or otherwise complied with by Buyer before, on, or after the Closing Date; or
(ii) the inaccuracy or breach of any of the representations, warranties or covenants made by Buyer in this Agreement, but only if the claim or demand for such indemnification is asserted prior to the date upon which such representation or warranty expires pursuant to Article 5; or
(iii) any and all liabilities obligation or obligations of the Partnership that accrue or arise in the course of liability with respect to the operation of the business of the Partnership Company by Buyer after the Closing Date,
(iv) any and all liabilities or obligations of the Partnership with respect to the installation and operation of the Fish Lift, regardless of whether such liabilities or obligations accrued or arose before or after the Closing Date.Closing;
(b) any and all Damagesactions, suits, proceedings, claims, liabilities, demands, assessments, judgments, interest, penalties, costs and expenses, including reasonable attorneys' fees (whether or not ’ fees, incurred by Sellers or any Affiliate of Sellers the Seller Indemnities in connection with investigating, defending, settling or prosecuting any action, suit, proceeding or claim against any Seller Indemnitee hereunder, incident to any of the items referred to in Section 10.2(a); provided, that, if any action, suit, proceeding, claim, liability, demand or claim against a Buyer hereunder), incident to any of the foregoing or such indemnification; provided, however, that if any Damages are assessment shall be asserted against any Seller Indemnitee in respect of which such Seller Indemnitee proposes to demand indemnification, such Seller Indemnitee shall notify Buyers Buyer thereof within a reasonable period of time after assertion thereof, and such notice shall include copies of all suit, service and claim documents, all other relevant documents in the possession of the Seller Indemnitee and an explanation of the Seller Indemnitee’s contentions and defenses with as much specificity and particularity as the circumstances permit; provided, further, that the failure of the Seller Indemnitee to give such notice or provide such documentation shall not relieve Buyer of its obligations under this Section 10.2 if Buyer shall not have been prejudiced thereby (and then solely to the extent thereof). Subject to rights of or duties to any insurer or other third person Person having liability therefor, Buyers Buyer shall have the right after acknowledging to the applicable Seller Indemnitee its liability therefor within ten (10) days after receipt of such notice to assume the control of the defense, compromise, compromise or settlement of any such Damagesaction, suit, proceeding, claim, liability, demand, or assessment, including, at its own expense, employment of counsel and at any time thereafter to exercise on behalf of Seller Indemnitee any rights that may mitigate any of such Damagescounsel; provided, howeverthat, that if any Buyer exercises shall have exercised its right to assume such control, the Seller Indemnitee:
(i) Indemnitee may, in its sole discretiondiscretion and at its sole expense, employ counsel to represent it (in addition to counsel employed by Buyer, and in the latter case, at Seller Indemnitee's sole expense) in any such matter, and in such event counsel selected by Buyer shall be required to cooperate with such counsel of the Seller Indemnitee in such defense, compromise, compromise or settlement for the purpose of informing and sharing information with such Seller Indemnitee. So long as Buyer is defending in good faith any such claims or demands asserted by a third Person against the Seller Indemnitee, and
the Seller Indemnitee shall not settle or compromise such claim or demand. If Buyer has assumed the defense of any such claim or demand, then it shall not consent to the entry of judgment or enter into any settlement without the prior written consent of the Seller Indemnitee (ii) will, at its own expense, which consent shall not be unreasonably withheld). The Seller Indemnitee shall make available to Buyer those employees of Sellers or any Affiliate of Sellers whose assistance, testimony, or presence is necessary to assist Buyer its agents all records and other materials in evaluating and in defending any such Damages; provided, however, that any such availability shall be provided in such a manner as not to interfere unreasonably with the operations of the businesses of Sellers and their Affiliates.
(c) In the event that no fine is assessed against the Partnership as of December 31, 2005 Seller Indemnitee’s possession reasonably required by it for its failure to construct an operational fish passage facility at the Project on use in contesting any third party claim or prior to May 1, 2005, the amount of Eighteen Thousand Dollars ($18,000) that has been deducted from the Purchase Price hereunder as a credit towards the payment of such fine by the Partnership to the Kennebec River Restoration Fund, which shall be refunded to the Sellers on or before January 16, 2006demand.
Appears in 1 contract
Samples: Stock Purchase Agreement (Natural Gas Services Group Inc)
Indemnification of Sellers. Each of Subject to the Buyerslimitations set forth in Section 9.4 below, Purchaser and Parent shall jointly and severally, agrees to defend, severally indemnify, defend and hold harmless Sellers Sellers, and their respective successors Affiliates, and their respective officers, members, managers, successors, and assigns (individuallyhereinafter, a collectively, "Seller Indemnitee" and collectively, the "Sellers Indemnitees"), ) from and against and in respect of any and all Losses suffered or incurred by any Seller Indemnitee by reason of, or arising out of:
(a) any and all Losses misrepresentation, breach of representation or warranty, or nonfulfillment of any covenant or agreement of Purchaser or Parent contained in this Agreement;
(b) the Material Contracts (except, with respect to any third party caused byMaterial Contract where the Loss results from or arises out of any default, resulting or arising frombreach, misfeasance, malfeasance, or otherwise relating to:nonfeasance by the Company prior to the Closing under or with respect to such Material Contract); or
(c) any claims, liabilities, obligations, damages, costs, and expenses, known or unknown, fixed or contingent, claimed or demanded by third parties against Sellers to the extent arising out of or resulting from (i) the Company's operation or the conduct of the Business from and after the Closing, (ii) ownership or operation of the Company's or Metal Resources' assets and arising out of any failure of either Buyer to perform fact or otherwise fulfill or comply with any undertaking or other agreement or obligation hereunder to be performed, fulfilledoccurrence from and after the Closing, or otherwise complied with by Buyer before, on, (iii) any requirements or obligations that arise pursuant to the Consent Order and come due on or after the Closing Date; or
(ii) the inaccuracy or breach of any of the representations, warranties or covenants made by Buyer in this Agreement, but only if the claim or demand for such indemnification is asserted prior to the date upon which such representation or warranty expires pursuant to Article 5; or
(iii) any and all liabilities or obligations of the Partnership that accrue or arise in the course of the operation of the business of the Partnership after the Closing Date,
(iv) any and all liabilities or obligations of the Partnership with respect to the installation and operation of the Fish Lift, regardless of whether such liabilities or obligations accrued or arose before or after the Closing Date.
(b) any and all Damages, including reasonable attorneys' fees (whether or not incurred by Sellers or any Affiliate of Sellers in connection with any action, suit, proceeding, or claim against a Buyer hereunder), incident to any of the foregoing or such indemnification; provided, however, that if any Damages are asserted against any Seller Indemnitee in respect of which such Seller Indemnitee proposes to demand indemnification, such Seller Indemnitee shall notify Buyers thereof within a reasonable period of time after assertion thereof. Subject to rights of or duties to any insurer or other third person having liability therefor, Buyers shall have the right after acknowledging to the applicable Seller Indemnitee its liability therefor within ten (10) days after receipt of such notice to assume extent Losses result from the control failure of the defenseCompany to comply with the requirements of the Consent Order prior to Closing, compromisePurchaser's indemnification obligations hereunder shall be reduced to the extent such pre-Closing noncompliance resulted in (y) such post-Closing Losses, or settlement of (z) any such Damagesadditional requirements to be imposed upon the Company, including, at its own expense, employment of counsel and at any time thereafter to exercise on behalf of Seller Indemnitee any rights that may mitigate any of such Damages; provided, however, that if any Buyer exercises its right to assume such control, Seller Indemnitee:
(i) may, in its sole discretion, employ counsel to represent it (in addition to counsel employed by Buyer, and in the latter case, at Seller Indemnitee's sole expense) in any such matter, and in such event counsel selected by Buyer shall be required to cooperate with such counsel of Seller Indemnitee in such defense, compromiseMetal Resources, or settlement for the purpose of informing and sharing information with such Seller Indemnitee, and
(ii) will, at its own expense, make available to Buyer those employees of Sellers or any Affiliate of Sellers whose assistance, testimony, or presence is necessary to assist Buyer in evaluating and in defending any such Damages; provided, however, that any such availability shall be provided in such a manner as not to interfere unreasonably with the operations of the businesses of Sellers and their AffiliatesPurchaser.
(c) In the event that no fine is assessed against the Partnership as of December 31, 2005 for its failure to construct an operational fish passage facility at the Project on or prior to May 1, 2005, the amount of Eighteen Thousand Dollars ($18,000) that has been deducted from the Purchase Price hereunder as a credit towards the payment of such fine by the Partnership to the Kennebec River Restoration Fund, which shall be refunded to the Sellers on or before January 16, 2006.
Appears in 1 contract
Samples: Limited Liability Company Interest Purchase Agreement (Atlas Industries Holdings LLC)
Indemnification of Sellers. Each of From and after the BuyersClosing and subject to the limitations herein provided, jointly Purchasers and severally, agrees to defend, indemnifySARC shall upon demand indemnify and hold Sellers harmless against, and hold harmless reimburse Sellers from time to time when and their respective successors as costs are incurred for, any actual damage, loss, liability, fine, penalty, charge, administrative or judicial proceeding or order, judgment, remedial action requirement, enforcement action of any kind, cost or expense (including reasonable attorneys' fees and assigns other expenses incurred in investigating or defending any claim against Sellers for such damage, loss, cost or expense) incurred by Sellers (individually, a "Seller Indemnitee" and collectively, the Losses"Sellers Indemnitees"), against and in respect of:
) resulting from (a) any and all Losses to any third party caused by, resulting or arising from, or otherwise relating to:
(i) any failure of either Buyer to perform or otherwise fulfill or comply with any undertaking or other agreement or obligation hereunder to be performed, fulfilled, or otherwise complied with by Buyer before, on, or after the Closing Date; or
(ii) the inaccuracy or breach of any of the Purchasers' representations, warranties or covenants made by Buyer in this Agreement, but an Option Purchase Agreement or the Management Rights Purchase Agreement, or any document or instrument delivered pursuant hereto or thereto, or from any misrepresentation in, or omission from, any information, certificate, license, report or other instrument or agreement furnished to Sellers by Purchasers and/or SARC pursuant to this Agreement, an Option Purchase Agreement or the Management Rights Purchase Agreement, or (b) any of those certain instruments and agreements (each a "Seller Guaranty") identified on Schedule 8.2 hereto if and to only if the claim extent they arise out of an LLC's (or demand for Partnership's) post-Closing default on any obligation that is guaranteed as of the date hereof by such indemnification is asserted prior Seller under such Seller's Guaranty. Each Seller shall have the right, with notice, to offset or set off amounts owed to such Seller under this Article VIII against amounts owed by such Seller to the date upon which Purchaser of such representation Seller's Subject Interest, Option Interest or warranty expires Management Rights pursuant to Article 5; or
any other obligations. Sellers' right to indemnification, payment of damages or other remedy hereunder based upon Purchasers' representations, warranties, covenants and obligations in this Agreement, an Option Purchase Agreement or the Management Rights Purchase Agreement will not be affected or limited by any investigation conducted by or on behalf of Sellers with respect hereto or thereto, any preparation or compilation by or on behalf of Sellers of schedules to this Agreement, an Option Purchase Agreement or the Management Rights Purchase Agreement, or any knowledge acquired (iiior capable of being acquired) by Sellers at any and all liabilities time before or obligations of the Partnership that accrue or arise in the course of the operation of the business of the Partnership after the Closing Date,
(iv) any execution and all liabilities or obligations delivery of the Partnership this Agreement with respect to the installation and operation accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation, other than the Actual Knowledge of the Fish Lift, regardless of whether such liabilities or obligations accrued or arose before or after the Closing Date.
(b) any Applicable Knowledge Parties on and all Damages, including reasonable attorneys' fees (whether or not incurred by Sellers or any Affiliate of Sellers in connection with any action, suit, proceeding, or claim against a Buyer hereunder), incident to any as of the foregoing or such indemnification; provided, however, that if any Damages are asserted against any Seller Indemnitee in respect of which such Seller Indemnitee proposes to demand indemnification, such Seller Indemnitee shall notify Buyers thereof within a reasonable period of time after assertion thereof. Subject to rights of or duties to any insurer or other third person having liability therefor, Buyers shall have the right after acknowledging to the applicable Seller Indemnitee its liability therefor within ten (10) days after receipt of such notice to assume the control of the defense, compromise, or settlement of any such Damages, including, at its own expense, employment of counsel and at any time thereafter to exercise on behalf of Seller Indemnitee any rights that may mitigate any of such Damages; provided, however, that if any Buyer exercises its right to assume such control, Seller Indemnitee:
(i) may, in its sole discretion, employ counsel to represent it (in addition to counsel employed by Buyer, and in the latter case, at Seller Indemnitee's sole expense) in any such matter, and in such event counsel selected by Buyer shall be required to cooperate with such counsel of Seller Indemnitee in such defense, compromise, or settlement for the purpose of informing and sharing information with such Seller Indemnitee, and
(ii) will, at its own expense, make available to Buyer those employees of Sellers or any Affiliate of Sellers whose assistance, testimony, or presence is necessary to assist Buyer in evaluating and in defending any such Damages; provided, however, that any such availability shall be provided in such a manner as not to interfere unreasonably with the operations of the businesses of Sellers and their Affiliatesdate hereof.
(c) In the event that no fine is assessed against the Partnership as of December 31, 2005 for its failure to construct an operational fish passage facility at the Project on or prior to May 1, 2005, the amount of Eighteen Thousand Dollars ($18,000) that has been deducted from the Purchase Price hereunder as a credit towards the payment of such fine by the Partnership to the Kennebec River Restoration Fund, which shall be refunded to the Sellers on or before January 16, 2006.
Appears in 1 contract
Samples: Purchase Agreement (Symbion Inc/Tn)
Indemnification of Sellers. Each of the Buyers, jointly and severally, Buyer agrees to defend, indemnify, indemnify and hold harmless Sellers and their respective successors and assigns (individually, individually a "Seller Indemnitee," and collectively, collectively the "Sellers Seller Indemnitees")) from, against and in respect ofof the following:
(a) any and all Losses to any third party losses, damages, deficiencies or liabilities caused by, resulting or arising from, from or otherwise relating to:
to (i) any breach of the representations and warranties of Buyer contained in this Agreement or in any instrument, certificate or affidavit delivered by or on behalf of Buyer at the Closing in accordance with this Agreement; (ii) any failure of either by Buyer to perform or otherwise fulfill or comply with: (X) if this Agreement shall have been terminated, Section 6.3 or any other covenant, undertaking, agreement or obligation to be performed, fulfilled or complied with by Buyer prior to or in connection with the Closing; or (Y) if the Closing shall occur, any covenant, undertaking or other agreement or obligation hereunder to be performed, fulfilled, fulfilled or otherwise complied with by Buyer before, on, or after the Closing Date; or
(ii) the inaccuracy or breach of any of the representations, warranties or covenants made by Buyer in this Agreement, but only if the claim or demand for such indemnification is asserted prior to the date upon which such representation or warranty expires pursuant to Article 5; or
(iii) any and all liabilities obligation or obligations of the Partnership that accrue or arise in the course of liability with respect to the operation of the business of the Partnership Company by Buyer after the Closing Date,
(iv) any and all liabilities or obligations of the Partnership with respect to the installation and operation of the Fish Lift, regardless of whether such liabilities or obligations accrued or arose before or after the Closing Date.Closing;
(b) any and all Damagesactions, suits, proceedings, claims, liabilities, demands, assessments, judgments, interest, penalties, costs and expenses, including reasonable attorneys' fees (whether or not fees, incurred by Sellers or any Affiliate of Sellers the Seller Indemnities in connection with investigating, defending, settling or prosecuting any action, suit, proceeding or claim against any Seller Indemnitee hereunder, incident to any of the items referred to in Section 10.2(a); provided, that, if any action, suit, proceeding, claim, liability, demand or claim against a Buyer hereunder), incident to any of the foregoing or such indemnification; provided, however, that if any Damages are assessment shall be asserted against any Seller Indemnitee in respect of which such Seller Indemnitee proposes to demand indemnification, such Seller Indemnitee shall notify Buyers Buyer thereof within a reasonable period of time after assertion thereof, and such notice shall include copies of all suit, service and claim documents, all other relevant documents in the possession of the Seller Indemnitee and an explanation of the Seller Indemnitee's contentions and defenses with as much specificity and particularity as the circumstances permit; provided, further, that the failure of the Seller Indemnitee to give such notice or provide such documentation shall not relieve Buyer of its obligations under this Section 10.2 if Buyer shall not have been prejudiced thereby (and then solely to the extent thereof). Subject to rights of or duties to any insurer or other third person Person having liability therefor, Buyers Buyer shall have the right after acknowledging to the applicable Seller Indemnitee its liability therefor within ten (10) days after receipt of such notice to assume the control of the defense, compromise, compromise or settlement of any such Damagesaction, suit, proceeding, claim, liability, demand, or assessment, including, at its own expense, employment of counsel and at any time thereafter to exercise on behalf of Seller Indemnitee any rights that may mitigate any of such Damagescounsel; provided, howeverthat, that if any Buyer exercises shall have exercised its right to assume such control, the Seller Indemnitee:
(i) Indemnitee may, in its sole discretiondiscretion and at its sole expense, employ counsel to represent it (in addition to counsel employed by Buyer, and in the latter case, at Seller Indemnitee's sole expense) in any such matter, and in such event counsel selected by Buyer shall be required to cooperate with such counsel of the Seller Indemnitee in such defense, compromise, compromise or settlement for the purpose of informing and sharing information with such Seller Indemnitee. So long as Buyer is defending in good faith any such claims or demands asserted by a third Person against the Seller Indemnitee, and
the Seller Indemnitee shall not settle or compromise such claim or demand. If Buyer has assumed the defense of any such claim or demand, then it shall not consent to the entry of judgment or enter into any settlement without the prior written consent of the Seller Indemnitee (ii) will, at its own expense, which consent shall not be unreasonably withheld). The Seller Indemnitee shall make available to Buyer those employees of Sellers or any Affiliate of Sellers whose assistance, testimony, or presence is necessary to assist Buyer its agents all records and other materials in evaluating and in defending any such Damages; provided, however, that any such availability shall be provided in such a manner as not to interfere unreasonably with the operations of the businesses of Sellers and their Affiliates.
(c) In the event that no fine is assessed against the Partnership as of December 31, 2005 Seller Indemnitee's possession reasonably required by it for its failure to construct an operational fish passage facility at the Project on use in contesting any third party claim or prior to May 1, 2005, the amount of Eighteen Thousand Dollars ($18,000) that has been deducted from the Purchase Price hereunder as a credit towards the payment of such fine by the Partnership to the Kennebec River Restoration Fund, which shall be refunded to the Sellers on or before January 16, 2006demand.
Appears in 1 contract
Samples: Stock Purchase Agreement (Natural Gas Services Group Inc)
Indemnification of Sellers. Each of the Buyers, jointly and severally, agrees to defend, indemnify, and hold harmless Sellers and their respective successors and assigns (individually, a "Seller Indemnitee" and collectively, the "Sellers Indemnitees"), against and in respect of:
(a) Acquisition hereby agrees to indemnify and hold Sellers, their successors and permitted assigns harmless from and against any and all Losses to any third party caused byliability, resulting loss, cost or arising from, expense which Sellers may suffer or otherwise relating tobecome liable for as a result or in connection with:
(i) any failure of either Buyer to perform or otherwise fulfill or comply with any undertaking or other agreement or obligation hereunder to be performed, fulfilled, or otherwise complied with by Buyer before, on, or after the Closing Date; or
(ii) the inaccuracy or breach of any of the representations, warranties or covenants made by Buyer in this Agreement, but only if the claim or demand for such indemnification is asserted prior to the date upon which such representation or warranty expires pursuant to Article 5; or
(iii) any Any and all liabilities or liabilities, obligations of the Partnership that accrue or and claims, which arise in the course of from the operation of the business of the Partnership CCI after the Closing Date,, other than to the extent resulting from any malfeasance, misfeasance, negligence, or actions of Sellers or any matter referred to in Section 7.1; and
(ivii) any Any and all liabilities monetary damages or obligations deficiency resulting from any misrepresentation, breach of warranty, and/or nonfulfillment of any agreement or covenant on the Partnership with respect part of Acquisition under this Agreement or resulting from any misrepresentation or omission from any certificate, schedule, list, or other instrument to the installation and operation of the Fish Lift, regardless of whether such liabilities or obligations accrued or arose before or after the Closing Datebe furnished by Acquisition to Sellers under this Agreement.
(b) Noble hereby agrees to indemnify and hold Sellers, their successors and permitted assigns harmless from and against any and all Damagesliability, including reasonable attorneys' fees (whether loss, cost or not incurred by expense which Sellers may suffer or any Affiliate of Sellers become liable for as a result or in connection with any actionand all monetary damages or deficiency resulting from any misrepresentation, suitbreach of warranty, proceedingand/or nonfulfillment of any agreement or covenant on the part of Noble under this Agreement or resulting from any misrepresentation or omission from any certificate, schedule, list, or claim against a Buyer hereunder), incident other instrument to any of the foregoing or such indemnification; provided, however, that if any Damages are asserted against any Seller Indemnitee in respect of which such Seller Indemnitee proposes be furnished by Noble to demand indemnification, such Seller Indemnitee shall notify Buyers thereof within a reasonable period of time after assertion thereof. Subject to rights of or duties to any insurer or other third person having liability therefor, Buyers shall have the right after acknowledging to the applicable Seller Indemnitee its liability therefor within ten (10) days after receipt of such notice to assume the control of the defense, compromise, or settlement of any such Damages, including, at its own expense, employment of counsel and at any time thereafter to exercise on behalf of Seller Indemnitee any rights that may mitigate any of such Damages; provided, however, that if any Buyer exercises its right to assume such control, Seller Indemnitee:
(i) may, in its sole discretion, employ counsel to represent it (in addition to counsel employed by Buyer, and in the latter case, at Seller Indemnitee's sole expense) in any such matter, and in such event counsel selected by Buyer shall be required to cooperate with such counsel of Seller Indemnitee in such defense, compromise, or settlement for the purpose of informing and sharing information with such Seller Indemnitee, and
(ii) will, at its own expense, make available to Buyer those employees of Sellers or any Affiliate of Sellers whose assistance, testimony, or presence is necessary to assist Buyer in evaluating and in defending any such Damages; provided, however, that any such availability shall be provided in such a manner as not to interfere unreasonably with the operations of the businesses of Sellers and their Affiliatesunder this Agreement.
(c) In the event that no fine is assessed against the Partnership as of December 31, 2005 for its failure to construct an operational fish passage facility at the Project on or prior to May 1, 2005, the amount of Eighteen Thousand Dollars ($18,000) that has been deducted from the Purchase Price hereunder as a credit towards the payment of such fine by the Partnership With regard to the Kennebec River Restoration Fundindemnification provisions of subsections (a) and (b) above, within sixty (60) days after learning of the assertion of any claim against which a Seller claim indemnification hereunder, such Seller shall be refunded notify Acquisition and/or Noble, as the case may be, and afford Acquisition and/or Noble the opportunity to assume the defense or monetary settlement thereof at their own expense with counsel of their choosing, and such Seller shall have cooperated fully to make available to Acquisition and/or Noble all pertinent information under its control or in its possession. Sellers on or before January 16, 2006shall have the right to join in the defense of any such claim with counsel of their own choosing and at Sellers' own expense.
Appears in 1 contract
Indemnification of Sellers. Each of the Buyers, Purchaser and SARC jointly and severally, agrees to defend, indemnifyseverally shall upon demand indemnify and hold Sellers harmless against, and hold harmless reimburse Sellers from time to time when and their respective successors as costs are incurred for, any actual damage, loss, liability, fine, penalty, charge, administrative or judicial proceeding or order, judgment, remedial action requirement, enforcement action of any kind, cost or expense (including reasonable attorneys' fees and assigns (individuallyother expenses incurred in investigating or defending any claim against Sellers for such damage, a "Seller Indemnitee" and collectivelyloss, the "cost or expense) incurred by Sellers Indemnitees"), against and in respect of:
(a) resulting from any and all Losses to any third party caused by, resulting or arising from, or otherwise relating to:
(i) any failure of either Buyer to perform or otherwise fulfill or comply with any undertaking or other agreement or obligation hereunder to be performed, fulfilled, or otherwise complied with by Buyer before, on, or after the Closing Date; or
(ii) the inaccuracy or breach of any of the Purchaser's representations, warranties or covenants made by Buyer in this Agreement, but only if the claim or demand for such indemnification is asserted prior any document or instrument delivered pursuant hereto, or from any misrepresentation in, or omission from, any information, certificate, license, report or other instrument or agreement furnished to the date upon which such representation or warranty expires Sellers pursuant to Article 5; or
this Agreement made by Purchaser and/or SARC, other than any breach, misrepresentation, omission or inaccuracy within "Sellers' Actual Knowledge" (iiias defined below). Sellers shall have the right, with notice, to offset or set off amounts owed to it under this Section 8.2 against amounts owed by Sellers to Purchaser pursuant to any other obligations. Sellers' right to indemnification, payment of damages or other remedy hereunder based upon Purchaser's representations, warranties, covenants and obligations herein will not be affected or limited by any investigation conducted by or on behalf of Sellers with respect hereto, any preparation or compilation by or on behalf of Sellers of schedules to this Agreement, or any knowledge acquired (or capable of being acquired) by Sellers, except the Sellers' Actual Knowledge, at any time before or after the execution and all liabilities or obligations delivery of this Agreement of the Partnership that accrue or arise in the course of the operation of the business of the Partnership after the Closing Date,
(iv) any and all liabilities or obligations of the Partnership Date with respect to the installation and operation of the Fish Lift, regardless of whether such liabilities accuracy or obligations accrued or arose before or after the Closing Date.
(b) any and all Damages, including reasonable attorneys' fees (whether or not incurred by Sellers or any Affiliate of Sellers in connection with any action, suit, proceeding, or claim against a Buyer hereunder), incident to any of the foregoing or such indemnification; provided, however, that if any Damages are asserted against any Seller Indemnitee in respect of which such Seller Indemnitee proposes to demand indemnification, such Seller Indemnitee shall notify Buyers thereof within a reasonable period of time after assertion thereof. Subject to rights inaccuracy of or duties to compliance with, any insurer such representation, warranty, covenant or other third person having liability thereforobligation. As used herein, Buyers shall have "Sellers' Actual Knowledge" means the right after acknowledging to the applicable Seller Indemnitee its liability therefor within ten (10) days after receipt of such notice to assume the control of the defense, compromise, or settlement actual knowledge of any such Damages, including, at its own expense, employment of counsel and at any time thereafter to exercise on behalf of Seller Indemnitee any rights that may mitigate any of such Damages; provided, however, that if any Buyer exercises its right to assume such control, Seller Indemnitee:
(i) may, in its sole discretion, employ counsel to represent it (in addition to counsel employed by Buyer, and in the latter case, at Seller Indemnitee's sole expense) in any such matter, and in such event counsel selected by Buyer shall be required to cooperate with such counsel of Seller Indemnitee in such defense, compromise, or settlement for the purpose of informing and sharing information with such Seller Indemnitee, and
(ii) will, at its own expense, make available to Buyer those employees of Sellers or any Affiliate of Sellers whose assistance, testimony, or presence is necessary to assist Buyer in evaluating and in defending any such Damages; provided, however, that any such availability shall be provided in such a manner as not to interfere unreasonably with the operations of the businesses of Sellers and their AffiliatesSeller.
(c) In the event that no fine is assessed against the Partnership as of December 31, 2005 for its failure to construct an operational fish passage facility at the Project on or prior to May 1, 2005, the amount of Eighteen Thousand Dollars ($18,000) that has been deducted from the Purchase Price hereunder as a credit towards the payment of such fine by the Partnership to the Kennebec River Restoration Fund, which shall be refunded to the Sellers on or before January 16, 2006.
Appears in 1 contract
Samples: Purchase Agreement (Symbion Inc/Tn)
