Indemnification of the Initial Purchaser. The Company and each of the Guarantors jointly and severally agree to indemnify and hold harmless the Initial Purchaser, its affiliates, directors and officers and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum or the Offering Memorandum, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (i) neither the Company nor any Guarantor shall be liable in any such case to the extent that such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Offering Memorandum (excluding any documents incorporated by reference therein) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereof.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company and each of the Guarantors jointly and severally agree agrees to indemnify and hold harmless the Initial Purchaser, its affiliatesdirectors, directors officers and officers employees, and each person, if any, who controls the each Initial Purchaser within the meaning of Section 15 of the Securities Act and the Exchange Act against any loss, claim, damage, liability or Section 20 expense, as incurred, to which the Initial Purchaser or such controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Exchange ActCompany), from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are is based upon, (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum (or any amendment or supplement thereto), or the Offering Memorandum, or any omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (ii) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (iii) any act or failure to act or any alleged act or failure to act by such Initial Purchaser in connection with, or relating in any manner to, the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause above; provided that (i) neither the Company nor any Guarantor shall not be liable in any such case under this clause (iii) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such lossesloss, claimsclaim, damages damage, liability or liabilities arise action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Initial Purchaser through its gross negligence or willful misconduct; and to reimburse each Initial Purchaser and each such controlling person for reasonable expenses (including the reasonable fees and disbursements of counsel chosen by Banc of America Securities LLC) as such expenses are reasonably incurred by such Initial Purchaser or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of, of or are based upon, upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly Purchasers for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Offering Memorandum (excluding or any documents incorporated by reference therein) was not sent amendment or given supplement thereto). The indemnity agreement set forth in this Section 8 shall be in addition to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by any liabilities that the Company and the Guarantors with the provisions of Section 4 hereofmay otherwise have.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company Issuer and each of the Guarantors jointly and severally agree to indemnify and hold harmless the Initial Purchaser, its affiliates, directors directors, officers and officers employees and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, an “Indemnified Party”), from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with investigating, preparing for or defending against any loss, damage, liability, litigation, investigation, suit, action or proceeding or any claim assertedasserted (whether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any of the above, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, any untrue statement or alleged untrue statement of a any material fact contained in the Preliminary Offering Memorandum Time of Sale Information, any Issuer Written Communication or the Offering Memorandum, Circular (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (i) neither the Company nor any Guarantor shall be liable , in any such each case to the extent that except insofar as such losses, claims, damages or liabilities arise out of, of or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to the Initial Purchaser furnished to Holdings or the Company Issuer in writing by the Initial Purchaser expressly for use therein therein, it being understood and (ii) agreed that with respect to any the only such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit information consists of the Initial Purchaser to the extent that the sale to the person asserting any information described as such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both in subsection (Ab) a copy of the Offering Memorandum (excluding any documents incorporated by reference therein) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereofbelow.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company and each of the Guarantors severally and jointly and severally agree to indemnify and hold harmless the Initial Purchaser, its affiliatesAffiliates, directors and officers its partners, directors, officers, employees, selling agents, and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, from and 1934 Act as follows:
(i) against any and all lossesloss, claimsliability, damages claim, damage and liabilities expense whatsoever (including, without limitation, including legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are as reasonably incurred), joint or several, that arise arising out of, or are based upon, of any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum Memorandum, any Additional Written Offering Communication or General Solicitation, the Disclosure Package or the Final Offering Memorandum, or any the omission or alleged omission therefrom of material fact required to state be stated therein a or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of material fact included or incorporated by reference (A) in the Preliminary Offering Memorandum, any Additional Written Offering Communication or General Solicitation, the Disclosure Package or the Final Offering Memorandum (or any amendment or supplement thereto) or (B) in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Notes (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission in the Preliminary Offering Memorandum, any Additional Written Offering Communication or General Solicitation, the Disclosure Package or the Final Offering Memorandum (or any amendment or supplement thereto) or in any Marketing Materials of material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, including the legal and other expenses reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any untrue statement or omission; provided that (isubject to Section 7(d) neither the Company nor any Guarantor shall be liable in below, any such case settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, including the fees and disbursements of counsel chosen by the Initial Purchaser, as reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such lossesexpense is not paid under (i) or (ii) above; provided, claimshowever, damages that this indemnity agreement shall not apply to any loss, liability, claim, damage or liabilities arise expense to the extent arising out of, or are based upon, of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser or its counsel expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Offering Memorandum (excluding any documents incorporated by reference therein) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unlessor Disclosure Package, as set forth in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereof11 below.
Appears in 1 contract
Samples: Purchase Agreement (CIFC Corp.)
Indemnification of the Initial Purchaser. The Company and each of the Guarantors jointly and severally agree agrees to indemnify and hold harmless the Initial Purchaser, its affiliatesdirectors, directors officers, employees and officers agents, and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and Act against any and all lossesloss, claimsclaim, damages and liabilities (includingdamage, without limitation, legal fees and other expenses incurred in connection with any suit, action liability or proceeding or any claim assertedexpense, as incurred, to which the Initial Purchaser, director, officer, employee, agent or controlling person may become subject, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are is based upon, upon any untrue statement or alleged untrue statement of a material fact contained in the Company’s Current Report on Form 8-K furnished to the Commission on November 5, 2009, the Preliminary Offering Memorandum or the Offering Memorandum, the Final Offering Memorandum, the information contained in the Final Term Sheet, any Issuer Written Information or any other written information used by or on behalf of the Company in connection with the offer or sale of the Notes (or any amendment or supplement to the foregoing), or the omission or alleged omission to state therein therefrom of a material fact fact, in each case, necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that , and to reimburse the Initial Purchaser, its officers, directors, employees, agents and each such controlling person for any and all expenses (iincluding the fees and disbursements of counsel chosen by MLPFS) neither the Company nor any Guarantor shall be liable as such expenses are reasonably incurred by such Initial Purchaser, or its officers, directors, employees, agents or such controlling person in connection with investigating, defending, settling, compromising or paying any such case loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent that such lossesextent, claimsbut only to the extent, damages arising out of or liabilities arise out of, based upon any untrue statement or are based upon, any alleged untrue statement or omission or alleged untrue statement or omission made in reliance based upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to Final Offering Memorandum, the benefit Final Term Sheet, any Issuer Written Information or any other written information used by or on behalf of the Initial Purchaser to Company in connection with the extent offer or sale of the Notes (or any amendment or supplement thereto), it being understood and agreed that the sale to the person asserting any only such loss, claim, damage or liability was an initial resale information furnished by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy consists of the Offering Memorandum (excluding information described as such in Section 8(b) hereof. The indemnity agreement set forth in this Section 8(a) shall be in addition to any documents incorporated by reference therein) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by liabilities that the Company and the Guarantors with the provisions of Section 4 hereofmay otherwise have.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Each of the Company and each of the Guarantors Guarantors, jointly and severally agree severally, agrees to indemnify and hold harmless the each Initial Purchaser, its affiliatesdirectors, directors officers and officers employees, and each person, if any, who controls the any Initial Purchaser within the meaning of Section 15 of the Securities Act and the Exchange Act against any loss, claim, damage, liability or Section 20 expense, as incurred, to which such Initial Purchaser, director, officer, employee or controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Exchange ActCompany or without the written consent of the Company as contemplated by Section 8(d)), from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are based upon, is based: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Company Additional Written Information or the Final Offering MemorandumMemorandum (or any amendment or supplement thereto), or any the omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that or (ii) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein; or (iii) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (iv) any act or failure to act or any alleged act or failure to act by any Initial Purchaser in connection with, or relating in any manner to, the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) neither above, provided that the Company nor any Guarantor shall not be liable in any such case under this clause (iv) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such lossesloss, claimsclaim, damages damage, liability or liabilities arise action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Initial Purchaser through its gross negligence or willful misconduct; and to reimburse each Initial Purchaser and each such director, officer, employee or controlling person for any and all expenses (including the fees and disbursements of counsel chosen by Banc of America Securities LLC) as such expenses are reasonably incurred by such Initial Purchaser or such director, officer, employee or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of, of or are based upon, upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser Representative expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to Pricing Supplement, any Company Additional Written Information or the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Final Offering Memorandum (excluding or any documents incorporated by reference thereinamendment or supplement thereto). The indemnity agreement set forth in this Section 8(a) was not sent or given shall be in addition to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by any liabilities that the Company and the Guarantors with the provisions of Section 4 hereofmay otherwise have.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Acquisition Sub agrees, and upon and from the due authorization, execution and delivery of the Joinder Agreement, the Company and each of the Guarantors jointly and severally agree agree, to indemnify and hold harmless the each Initial Purchaser, its affiliates, directors and officers and each person, if any, who controls the such Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are reasonably incurred), joint or several, that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum Memorandum, any of the other Time of Sale Information, Issuer Written Communication (if any) or the Offering Memorandum, Memorandum (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (i) neither the Company nor any Guarantor shall be liable , in any such each case to the extent that except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to the Initial Purchaser furnished to Holdings the Acquisition Sub or the Company in writing by the Initial Purchaser expressly for use therein and (ii) therein; provided, however, that the foregoing indemnity agreement with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) Memorandum shall not inure to the benefit of the Initial Purchaser or each affiliate, director and officer of the Initial Purchaser, where it shall have been determined by a court of competent jurisdiction by final and nonappealable judgment that (i) prior to the extent Time of Sale, the Company shall have notified the Initial Purchaser that the sale Preliminary Offering Memorandum contains an untrue statement of material fact or omits to state therein a material fact required to be stated therein in order to make the statements therein not misleading in light of the circumstances under which they were made, (ii) such untrue statement or omission of a material fact was corrected or supplemented, as the case may be, in an amendment or supplement to the Preliminary Offering Memorandum, including the Prospectus Supplement (the "Supplemental Information") and such Supplemental Information was provided to the Initial Purchaser reasonably in advance of the Time of Sale so that such Supplemental Information could have been provided to such person asserting any prior to the Time of Sale, (iii) the Initial Purchaser did not convey such Supplemental Information to such person at or prior to the Time of Sale of the Securities to such person, and (iv) such loss, claim, damage or liability was an initial resale by would not have occurred had the Initial Purchaser and any such loss, claim, damage or liability of or with respect to conveyed the Initial Purchaser results from the fact that both (A) a copy of the Offering Memorandum (excluding any documents incorporated by reference therein) was not sent or given Supplemental Information to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereofperson.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company and each of the Guarantors jointly and severally agree agrees to indemnify and hold harmless the Initial Purchaser, its affiliatesdirectors, directors officers and officers employees, and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act and the Exchange Act against any loss, claim, damage, liability or Section 20 expense, as incurred, to which such Initial Purchaser or such controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Exchange ActCompany), from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are is based upon, (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum (or any amendment or supplement thereto), or the Offering Memorandum, or any omission or alleged omission to state therein therefrom of a material fact fact, in each case, necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; provided that or (ii) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein; or (iii) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (iv) on any act or failure to act or any alleged act or failure to act by the Initial Purchaser in connection with, or relating in any manner to, the Debentures or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability, expense or action arising out of or based upon any matter covered by clause (i) neither above, provided that the Company nor any Guarantor shall not be liable in any such case under this clause (iv) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such lossesloss, claimsclaim, damages damage, liability, expense or liabilities arise action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Initial Purchaser through its bad faith or willful misconduct, and to reimburse the Initial Purchaser and each such controlling person for any and all expenses (including the reasonable fees and disbursements of counsel chosen by BAS) as such expenses are reasonably incurred by such Initial Purchaser or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of, of or are based upon, upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein in the Offering Memorandum (or any amendment or supplement thereto); and (ii) provided, further, that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the foregoing indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to from whom the person asserting any such loss, claim, damage damage, liability or liability was an initial resale by expense purchased Debentures, or any person controlling such Initial Purchaser, if copies of the Initial Purchaser and any such loss, claim, damage or liability of or with respect Final Offering Memorandum were timely delivered to the Initial Purchaser results from the fact that both (A) pursuant to Section 2 and a copy of the Final Offering Memorandum (excluding as then amended or supplemented if the Company shall have furnished any documents incorporated by reference thereinamendments or supplements thereto) was not sent or given by or on behalf of such Initial Purchaser to such person person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of such Securities the Debentures to such person person, and (B) if the untrue statement in or omission from such Preliminary Final Offering Memorandum was corrected (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The indemnity agreement set forth in the Offering Memorandum unless, this Section 8(a) shall be in either case, such failure addition to deliver the Offering Memorandum was a result of non-compliance by any liabilities that the Company and the Guarantors with the provisions of Section 4 hereofmay otherwise have.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company and each of the Guarantors jointly and severally agree agrees to indemnify and hold harmless the Initial Purchaser, its affiliates, directors and officers as such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”), its selling agents and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, from and 1934 Act as follows:
(i) against any and all lossesloss, claimsliability, damages claim, damage and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim assertedexpense whatsoever, as such fees and expenses are incurred), joint or several, that arise arising out of, or are based upon, of any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum, the Disclosure Package, the Final Offering Memorandum (or any amendment or supplement thereto) or any Supplemental Offering Materials, or the Offering Memorandum, or any omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (isubject to Section 7(d) neither the Company nor any Guarantor shall be liable in below) any such case settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such lossesexpense is not paid under (i) or (ii) above; provided, claimshowever, damages that this indemnity agreement shall not apply to any loss, liability, claim, damage or liabilities arise expense to the extent arising out of, or are based upon, of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to Disclosure Package, the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Final Offering Memorandum (excluding or any documents incorporated by reference thereinamendment or supplement thereto) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary any Supplemental Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereofMaterials.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company and each of the Guarantors jointly and severally agree agrees to indemnify and hold harmless the Initial Purchaser, its affiliates, directors and officers as such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”), its selling agents and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, from and 1934 Act as follows:
(i) against any and all lossesloss, claimsliability, damages claim, damage and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim assertedexpense whatsoever, as such fees and expenses are incurred), joint or several, that arise arising out of, or are based upon, of any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum or the Final Offering MemorandumMemorandum (or any amendment or supplement thereto), or any the omission or alleged omission to state therein therefrom, of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (isubject to Section 7(d) neither the Company nor any Guarantor shall be liable in below) any such case settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Initial Purchaser), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such lossesexpense is not paid under clauses (i) or (ii) above; provided, claimshowever, damages that this indemnity agreement shall not apply to any loss, liability, claim, damage or liabilities arise expense to the extent arising out of, or are based upon, of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein and in the Offering Memorandum (ii) or any amendment or supplement thereto); provided further that the Company shall not be liable to the Initial Purchaser with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser Memorandum to the extent that the sale to the person asserting any such loss, liability, claim, damage or liability was an initial resale by expense resulted from the fact that the Initial Purchaser sold Securities to a person to whom the Initial Purchaser failed to send or give, at or prior to the Closing Time, a copy of the Final Offering Memorandum, as then amended or supplemented if: (i) the Company has previously furnished copies thereof (sufficiently in advance of the Closing Time to allow for distribution by the Closing Time) to the Initial Purchaser, and any such the loss, liability, claim, damage or liability expense of or with respect to the Initial Purchaser results resulted from an untrue statement or omission of a material fact contained in or omitted from the fact that both (A) a copy of the Offering Memorandum (excluding any documents incorporated by reference therein) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum which was corrected in the Final Offering Memorandum unlessas, in either caseif applicable, amended or supplemented prior to the Closing Time and (ii) furnishing such failure to deliver the Final Offering Memorandum was a result of non-compliance by the Company and Closing Time to the Guarantors with party or parties asserting such loss, liability, claim, damage or expense would have constituted a defense to the provisions of Section 4 hereofclaim asserted by such person.
Appears in 1 contract
Samples: Purchase Agreement (Cyberonics Inc)
Indemnification of the Initial Purchaser. The Company and each of the Guarantors jointly and severally agree agrees to indemnify and hold harmless the Initial Purchaser, its affiliates, directors and officers and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum (or the Offering Memorandumany amendment or supplement thereto) or any Pricing Disclosure Package (including any Pricing Disclosure Package that has subsequently been amended), or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (i) neither the Company nor any Guarantor shall be liable , in any such each case to the extent that except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein therein, it being understood and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent agreed that the sale to the person asserting any only such loss, claim, damage or liability was an initial resale information furnished by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy consists of the Offering Memorandum information described as such in subsection (excluding any documents incorporated by reference thereinb) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereofbelow.
Appears in 1 contract
Samples: Purchase Agreement (Apollo Commercial Real Estate Finance, Inc.)
Indemnification of the Initial Purchaser. The Company and each Each of the Guarantors Companies jointly and severally agree agrees to indemnify and hold harmless the each Initial Purchaser, its affiliatesdirectors, directors officers and officers employees, and each person, if any, who controls the any Initial Purchaser within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Initial Purchaser or such controlling person may become subject, under the Securities Act, from and against the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any and all losseslitigation, claimsif such settlement is effected with the written consent of the Companies sought to be bound), damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are is based upon, (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum or the Offering MemorandumMemorandum (or any amendment or supplement thereto), or any the omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that or (ii) in whole or in part upon any inaccuracy in the representations and warranties of either Company contained herein; or (iii) in whole or in part upon any failure of either Company to perform its obligations hereunder or under law; or (iv) upon any act or failure to act or any alleged act or failure to act by any Initial Purchaser in connection with, or relating in any manner to, the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) neither above, provided that the Company nor any Guarantor Companies shall not be liable in any such case under this clause (iv) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such lossesloss, claimsclaim, damages damage, liability or liabilities arise action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Initial Purchaser through its gross negligence, willful misconduct or knowing violation of any resale provision of Rule 144A or Regulation S; and to reimburse each Initial Purchaser and each such controlling person for any and all expenses (including the fees and disbursements of counsel chosen by Banc of America Securities LLC) as such expenses are reasonably incurred by such Initial Purchaser or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of, of or are based upon, upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing Companies by the Initial Purchaser Purchasers expressly for use therein and (ii) that with respect to in any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage Memorandum or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Offering Memorandum (excluding or any documents incorporated by reference thereinamendment or supplement thereto). The indemnity agreement set forth in this Section 8(a) was not sent or given shall be in addition to such person at or prior to any liabilities that the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereofCompanies may otherwise have.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Each of the Company and each of the Guarantors Guarantors, jointly and severally agree severally, agrees to indemnify and hold harmless the Initial Purchaser, its affiliatesdirectors, directors officers and officers employees, and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act and the Exchange Act against any loss, claim, damage, liability or Section 20 expense, as incurred, to which the Initial Purchaser or such controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Exchange ActCompany, from and against any and all lossesand/or the Guarantors), claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are based upon, is based: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Pricing Disclosure Package or the Final Offering Memorandum (or any amendment or supplement thereto), or the Offering Memorandum, or any omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that or (ii) in whole or in part upon any inaccuracy in the representations and warranties of the Company or any Guarantor contained herein; or (iii) in whole or in part upon any failure of the Company or any Guarantor to perform its obligations hereunder or under law; or (iv) any act or failure to act or any alleged act or failure to act by the Initial Purchaser in connection with, or relating in any manner to, the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) neither above, provided that the Company nor any Guarantor shall not be liable in any such case under this clause (iv) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such lossesloss, claimsclaim, damages damage, liability or liabilities arise action resulted directly from any such acts or failures to act undertaken or omitted to be taken by the Initial Purchaser through its gross negligence or willful misconduct; and to reimburse the Initial Purchaser and each such controlling person for any and all expenses (including the fees and disbursements of counsel chosen by the Initial Purchaser) as such expenses are reasonably incurred by the Initial Purchaser or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of, of or are based upon, upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in the Pricing Disclosure Package or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Final Offering Memorandum (excluding or any documents incorporated by reference thereinamendment or supplement thereto). The indemnity agreement set forth in this Section 8(a) was not sent or given shall be in addition to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by any liabilities that the Company and or the Guarantors with the provisions of Section 4 hereofmay otherwise have.
Appears in 1 contract
Samples: Purchase Agreement (Geokinetics Inc)
Indemnification of the Initial Purchaser. The Company Each of the Issuers and each of the Guarantors jointly and severally agree to indemnify and hold harmless the Initial Purchaser, its affiliates, directors and officers and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum or the Offering Memorandum, Memorandum (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (i) neither the Company nor any Guarantor shall be liable in any such case to the extent that , except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, upon any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to the Initial Purchaser furnished to Holdings or the Company Issuers in writing by the Initial Purchaser expressly for use therein and (ii) therein; provided, that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (Ai) a copy of the Offering Memorandum (excluding any documents incorporated by reference therein) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (Bii) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereof.
Appears in 1 contract
Samples: Purchase Agreement (Plains Exploration & Production Co)
Indemnification of the Initial Purchaser. The Company Issuers and each of the Guarantors Guarantors, jointly and severally severally, agree to indemnify and hold harmless the Initial Purchaser, its affiliatesdirectors, directors officers and officers employees, and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act and the Exchange Act against any loss, claim, damage, liability or Section 20 expense, as incurred, to which the Initial Purchaser, such director, officer, employee or such controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Exchange ActCompany), from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are based upon, is based: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum (or any amendment or supplement thereto), or the Offering Memorandum, or any omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that or (ii) any act or failure to act or any alleged act or failure to act by the Initial Purchaser in connection with, or relating in any manner to, the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) neither above, provided that the Company nor any Guarantor Issuers and the Guarantors shall not be liable in any such case under this clause (ii) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such lossesloss, claimsclaim, damages damage, liability or liabilities arise action resulted directly from any such acts or failures to act undertaken or omitted to be taken by the Initial Purchaser through its gross negligence or willful misconduct; and to reimburse the Initial Purchaser and each such director, officer, employee or controlling person for any and all expenses (including the fees and disbursements of counsel chosen by the Initial Purchaser) as such expenses are reasonably incurred by the Initial Purchaser or such director, officer, employee or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of, of or are based upon, upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing Issuers by the Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Offering Memorandum (excluding or any documents incorporated by reference thereinamendment or supplement thereto). The indemnity agreement set forth in this Section 8(a) was not sent or given shall be in addition to such person at or prior to any liabilities that the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company Issuers and the Guarantors with the provisions of Section 4 hereofmay otherwise have.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company and each (a) Each of the Guarantors Issuers shall, jointly and severally agree severally, without limitation as to time, indemnify and hold harmless the Initial Purchaser, its affiliates, directors and officers Purchaser and each person, if any, who controls the Initial Purchaser (within the meaning of Section 15 of the Securities Act or Section 20 20(a) of the Exchange Act) the Initial Purchaser (any of such persons being hereinafter referred to as a "controlling person"), and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchaser and any such controlling person (collectively, the "Purchaser Indemnified Parties"), to the fullest extent lawful, from and against any and all losses, claims, damages and liabilities damages, liabilities, costs (including, without limitation, legal fees costs of preparation and other reasonable attorneys' fees) and expenses (including, without limitation, costs and expenses incurred in connection with investigating, preparing, pursuing or defending against any suitof the foregoing) (collectively, action or proceeding or any claim asserted"Losses"), as such fees and expenses are incurred), joint directly or severalindirectly caused by, that arise out ofrelated to, or are based upon, arising out of or in connection with (i) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum Circular or the Offering MemorandumCircular (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (ii) any act, omission, transaction or event contemplated by the Documents; provided provided, that the Issuers shall not be liable to any Purchaser Indemnified Party for any Losses that (ix) neither result solely from an untrue statement of a material fact contained in, or the Company nor omission of a material fact from, any Guarantor Preliminary Offering Circular, which untrue statement or omission was completely corrected in the Offering Circular (as then amended or supplemented) if it shall be liable in any have been determined by a court of competent jurisdiction by final and nonappealable judgment that (1) such case Purchaser Indemnified Party sold the Notes to the extent that person alleging such lossesLoss and failed to send or give, claimsat or prior to the written confirmation of such sale, damages a copy of the Offering Circular (as then amended or liabilities supplemented), if required by law to have so delivered it, and (2) the Issuers had previously furnished copies thereof to such Purchaser Indemnified Party within a reasonable amount of time prior to such sale or such confirmation, and (3) the corrected Offering Circular, if delivered, would have been a complete defense against the person asserting such Loss; (y) arise out of, solely from the gross negligence or willful misconduct of such Purchaser Indemnified Party; or (y) are based upon, any on an untrue statement or omission or alleged untrue statement or omission made in reliance upon on and in conformity with any information relating to the Initial Purchaser furnished to Holdings or the Company in writing to the Issuers by the Initial Purchaser expressly specifically for use therein and inclusion in the Preliminary Offering Circular or the Offering Circular. The parties hereto agree that the only information furnished in writing to the Issuers by the Initial Purchaser specifically for inclusion in the Preliminary Offering Circular or the Offering Circular is set forth in Section 6(a) hereof. The Issuers shall notify the Initial Purchaser promptly of the institution, threat or assertion of any Proceeding of which either of the Issuers is aware in connection with the matters addressed by this Agreement which involves either of the Issuers or any of the Purchaser Indemnified Parties.
(iib) If any Proceeding shall be brought or asserted against any person entitled to indemnification hereunder (an "Indemnified Party"), such Indemnified Party shall give prompt written notice to the indemnifying party; provided, that the failure to so notify the indemnifying parties shall not relieve the indemnifying parties from any obligation or liability except to the extent (but only to the extent) that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal) that the indemnifying party has been prejudiced materially by such failure. Neither of the Issuers shall consent to entry of any judgment in or enter into any settlement of any pending or threatened Proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any Indemnified Party is a party thereto) unless such judgment or settlement includes, as an unconditional term thereof, the giving by the claimant or plaintiff to each Indemnified Party of a release, in form and substance satisfactory to the Initial Purchaser, from all Losses that may arise from such Proceeding or the subject matter thereof (whether or not any Indemnified Party is a party thereto).
(c) The Initial Purchaser agrees to indemnify and hold harmless each of the Issuers and each person, if any, who controls (within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act) either of the Issuers (any of such persons being hereinafter referred to as a "controlling person"), and the respective members, managers, officers, directors, partners, employees, representatives and agents of the Issuers and any such controlling person to the same extent as the foregoing indemnity from the Issuer to each of the Purchaser Indemnified Parties, but only with respect to any such Losses that are caused by an untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained made in this paragraph (a) shall not inure reliance on and in conformity with information relating to the benefit of the Initial Purchaser furnished in writing to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale Issuers by the Initial Purchaser specifically for inclusion in the Preliminary Offering Circular or the Offering Circular. The parties hereto agree that the only information furnished in writing to the Issuers by the Initial Purchaser specifically for inclusion in the Preliminary Offering Circular or the Offering Circular is set forth in Section 6(a) hereof.
(d) If the indemnification provided for in this Section 8 is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless for any Losses in respect of which this Section 8 would otherwise apply by its terms (other than by reason of exceptions provided in this Section 8), then the Issuers, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuers, on the one hand, and the Initial Purchaser, on the other hand, from the Offering, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Issuers, on the one hand, and the Initial Purchaser, on the other hand, in connection with the actions, statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. The relative benefits received by the Issuers, on the one hand, and the Initial Purchaser, on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the Offering (before deducting expenses) received by the Issuers, and the total discounts and commissions received by the Initial Purchaser, bear to the total price of the Series A Notes in Exempt Resales in each case as set forth in the table on the cover page of the Offering Circular. The relative fault of the Issuers, on the one hand, and the Initial Purchaser, on the other hand, shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers, on the one hand, or the Initial Purchaser, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such lossstatement or omission. The amount paid or payable by an Indemnified Party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any Proceeding, claimto the extent such party would have been indemnified for such fees or expenses if the indemnifica tion provided for in this Section 8 was available to such party. Each party hereto agrees that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 8(d), damage or liability the Initial Purchaser shall not be required to contribute, in the aggregate, any amount in excess of or the amount by which the total discounts and commissions received by the Initial Purchaser with respect to the Series A Notes purchased by it exceeds the amount of any damages that the Initial Purchaser results from has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the fact that both (Ameaning of Section 11(f) a copy of the Offering Memorandum (excluding Act) shall be entitled to contribution from any documents incorporated by reference therein) person who was not sent guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 8 are in addition to any liability that the Issuers or given to such person at or prior the Initial Purchaser may otherwise have to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereofIndemnified Parties.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Each of the Company and each of the Guarantors Guarantors, jointly and severally severally, agree to indemnify and hold harmless the Initial Purchaser, its affiliatesdirectors, directors officers and officers employees, and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which the Initial Purchaser or such controlling person may become subject, under the Securities Act, from and against the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any and all losseslitigation, claimsif such settlement is effected with the written consent of the Company and/or the Guarantors), damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are is based upon, upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum or the Offering MemorandumMemorandum (or any amendment or supplement thereto), or any the omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that , and to reimburse the Initial Purchaser and each such controlling person for any and all expenses (iincluding the fees and disbursements of counsel chosen by the Initial Purchaser) neither as such expenses are reasonably incurred by the Company nor any Guarantor shall be liable Initial Purchaser or such controlling person in connection with investigating, defending, settling, compromising or paying any such case loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent that such lossesextent, claimsbut only to the extent, damages arising out of or liabilities arise out of, based upon any untrue statement or are based upon, any alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage Memorandum or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Offering Memorandum (excluding or any documents incorporated by reference thereinamendment or supplement thereto). The indemnity agreement set forth in this Section 8(a) was not sent or given shall be in addition to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by any liabilities that the Company and or the Guarantors with the provisions of Section 4 hereofmay otherwise have.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company and each of the Guarantors jointly and severally agree agrees to indemnify and hold harmless the Initial Purchaser, its affiliatesofficers and employees, directors and officers and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act and the Exchange Act against any loss, claim, damage, liability or Section 20 expense, as incurred, to which the Initial Purchaser or such controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Exchange ActCompany), from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are is based upon, upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum (or any amendment or supplement thereto), or the Offering Memorandum, or any omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements thereinfact, in the light of the circumstances under which they were made, in each case, necessary to make the statements therein not misleading; provided that and to reimburse the Initial Purchaser and each such controlling person for any and all expenses (iincluding the reasonable fees and disbursements of counsel chosen by the Initial Purchaser) neither as such expenses are reasonably incurred by the Company nor any Guarantor shall be liable Initial Purchaser or such controlling person in connection with investigating, defending, settling, compromising or paying any such case loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent that such lossesextent, claimsbut only to the extent, damages arising out of or liabilities arise out of, based upon any untrue statement or are based upon, any alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Offering Memorandum (excluding or any documents incorporated by reference thereinamendment or supplement thereto). The indemnity agreement set forth in this Section 7(a) was not sent or given shall be in addition to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by any liabilities that the Company and the Guarantors with the provisions of Section 4 hereofmay otherwise have.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company Manager and each of the Guarantors Issuer agree, jointly and severally agree severally, to indemnify and hold harmless the Initial Purchaser, its affiliates, directors and officers Purchaser and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and Act as follows:
(i) against any and all lossesloss, claimsliability, damages claim, damage and liabilities (includingexpense whatsoever, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise arising out of, or are based upon, of any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Time of Sale Information, the Final Offering Memorandum or the Offering Memorandum, marketing materials listed in Annex A or any the omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that ;
(iii) neither against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the Company nor extent of the aggregate amount paid in settlement of any Guarantor shall be liable in litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever, based upon any such case untrue statement or omission, or any such alleged untrue statement or omission;
(iii) against any breach by Manager or Issuer of its representations or covenants contained herein (except with respect to the representations and warranties set forth in Section 1(a)(i) and 1(b)(i) herein) which has a material adverse effect on the Initial Purchaser; and
(iv) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Initial Purchaser), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever, based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such lossesexpense is not paid under clause (i), claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (aiii) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Offering Memorandum (excluding any documents incorporated by reference therein) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereofabove.
Appears in 1 contract
Indemnification of the Initial Purchaser. (i) The Company and each of the Guarantors jointly and severally agree agrees to indemnify and hold harmless the each Initial PurchaserPurchaser ,its officers and employees, its affiliates, directors and officers and each person, if any, who controls the any Initial Purchaser within the meaning of Section 15 of the Securities Act and the Exchange Act against any loss, claim, damage, liability or Section 20 expense, as incurred, to which such Initial Purchaser or such controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Exchange ActCompany, from and against any and all losseswhich consent shall not be unreasonably withheld), claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are is based upon, (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum any Circular (or any amendment or supplement thereto), or the Offering Memorandum, or any omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (ii) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein; or (iii) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (iv) any act or failure to act or any alleged act or failure to act by any Initial Purchaser in connection with, or relating in any manner to, the Securities or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i), (ii) or (iii) above, provided that (i) neither the Company nor any Guarantor shall not be liable in any such case under this clause (iv) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such lossesloss, claimsclaim, damages damage, liability or liabilities arise action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Initial Purchaser through its bad faith or willful misconduct; and to reimburse each Initial Purchaser and each such controlling person for any and all expenses (including the reasonable fees and disbursements of counsel chosen by FleetBoston Xxxxxxxxx Xxxxxxxx Inc.) as such expenses are reasonably incurred by such Initial Purchaser or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of, of or are based upon, upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser Purchasers expressly for use therein in any Circular (or any amendment or supplement thereto); and (ii) provided, further, that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering MemorandumCircular, the foregoing indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the any Initial Purchaser to the extent that the sale to from whom the person asserting any such loss, claim, damage damage, liability or liability was an initial resale by expense purchased Securities, or any person controlling such Initial Purchaser, if copies of the Initial Purchaser and any such loss, claim, damage or liability of or with respect Final Circular were timely delivered to the Initial Purchaser results from the fact that both (A) pursuant to Section 2 and a copy of the Offering Memorandum Final Circular (excluding as then amended or supplemented if the Company shall have furnished any documents incorporated by reference thereinamendments or supplements thereto) was not sent or given by or on behalf of such Initial Purchaser to such person person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of such the Securities to such person person, and if the Final Circular (Bas so amended or supplemented) would have cured the untrue statement defect giving rise to such loss, claim, damage, liability or expense. The indemnity agreement set forth in or omission from such Preliminary Offering Memorandum was corrected this Section 7(a) shall be in the Offering Memorandum unless, in either case, such failure addition to deliver the Offering Memorandum was a result of non-compliance by any liabilities that the Company and the Guarantors with the provisions of Section 4 hereofmay otherwise have.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company and each of the Guarantors jointly and severally agree to indemnify and hold harmless the Initial Purchaser, its affiliates, directors directors, officers and officers employees, and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act and the Exchange Act against any loss, claim, damage, liability or Section 20 expense, as incurred, to which the Initial Purchaser or such affiliate, director, officer, employee or controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Exchange ActCompany or is otherwise permitted by Section 8(d) hereof), from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are based upon, is based: (i) upon any untrue statement or alleged untrue statement of a material fact contained included or incorporated by reference in the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Company Additional Written Communication or the Final Offering MemorandumMemorandum (or any amendment or supplement thereto), or any the omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that or (ii) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein; or (iii) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (iv) any act or failure to act or any alleged act or failure to act by the Initial Purchaser in connection with, or relating in any manner to, the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) neither above, provided that the Company nor any Guarantor shall not be liable in any such case under this clause (iv) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such lossesloss, claimsclaim, damages damage, liability or liabilities arise action resulted directly from any such acts or failures to act undertaken or omitted to be taken by the Initial Purchaser through its gross negligence or willful misconduct; and to reimburse the Initial Purchaser and each such affiliate, director, officer, employee or controlling person for any and all expenses (including the fees and disbursements of counsel chosen by the Initial Purchaser) as such expenses are reasonably incurred by the Initial Purchaser or such affiliate, director, officer, employee or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply, with respect to the Initial Purchaser, to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of, of or are based upon, upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to Pricing Supplement, any Company Additional Written Communication or the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Final Offering Memorandum (excluding or any documents incorporated by reference thereinamendment or supplement thereto). The indemnity agreement set forth in this Section 8(a) was not sent or given shall be in addition to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by any liabilities that the Company and the Guarantors with the provisions of Section 4 hereofmay otherwise have.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company and each Each of the Guarantors Par Entities, jointly and severally agree severally, agrees to indemnify and hold harmless the Initial Purchaser, its affiliates, directors directors, officers and officers employees, and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act and the Exchange Act against any loss, claim, damage, liability or Section 20 expense, as incurred, to which the Initial Purchaser, affiliate, director, officer, employee or controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Exchange ActPar Parties), from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, insofar as such fees and expenses are incurred)loss, joint claim, damage, liability or several, that arise expense (or actions in respect thereof as contemplated below) arises out of, of or are is based upon, upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Additional Written Communication or the Final Offering MemorandumMemorandum (or any amendment or supplement thereto), or any the omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that and to reimburse the Initial Purchaser and each such affiliate, director, officer, employee or controlling person for any and all expenses (iincluding the fees and disbursements of counsel chosen by the Initial Purchaser) neither as such expenses are reasonably incurred by the Company nor any Guarantor shall be liable Initial Purchaser or such affiliate, director, officer, employee or controlling person in connection with investigating, defending, settling, compromising or paying any such case loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply, with respect to the extent that such lossesInitial Purchaser, claimsto any loss, damages claim, damage, liability or liabilities arise expense to the extent, but only to the extent, arising out of, of or are based upon, upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating furnished to the Initial Purchaser furnished to Holdings or the Company in writing Par Parties by the Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to Pricing Supplement, any Issuer Additional Written Communication or the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Final Offering Memorandum (excluding or any documents incorporated by reference therein) was not sent amendment or given to such person at or prior supplement thereto), which information is limited to the written confirmation of Purchaser Information. The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereofPar Parties may otherwise have.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company and each of the Guarantors jointly and severally agree agrees to indemnify and hold harmless the Initial Purchaser, its affiliates, directors and officers and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum Memorandum, any of the other Time of Sale Information, any Issuer Written Communication, any road show as defined in Rule 433(h) under the Securities Act (a “road show”) or the Offering Memorandum, Memorandum (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (i) neither the Company nor any Guarantor shall be liable , in any such each case to the extent that except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein therein, it being understood and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent agreed that the sale to the person asserting any only such loss, claim, damage or liability was an initial resale information furnished by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy consists of the Offering Memorandum information described as such in subsection (excluding any documents incorporated by reference thereinb) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereofbelow.
Appears in 1 contract
Indemnification of the Initial Purchaser. The Company and each of the Guarantors jointly Issuer, severally and severally not jointly, agree to indemnify and hold harmless the each Initial Purchaser, its affiliates, directors and officers and each person, if any, who controls the such Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and as follows: against any and all lossesloss, claimsliability, damages claim, damage and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim assertedexpense whatsoever, as such fees and expenses are incurred), joint or several, that arise arising out of, or are based upon, any of an untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum (or any amendment thereto) or the Offering Memorandum, or any omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (isubject to Section 9(d) neither hereof) any such settlement is effected with the written consent of the Issuer and the Company nor if applicable; and against any Guarantor shall be liable and all expense whatsoever, as reasonably incurred (including the reasonable fees and disbursements of counsel chosen by such Initial Purchaser), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such case untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such lossesexpense is not paid under subparagraph (i) or (ii) above; provided, claimshowever, damages that this indemnity does not apply (x) to an Initial Purchaser for any loss, liability, claim, damage or liabilities arise expense to the extent arising out of, or are based upon, of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information relating to the Initial Purchaser furnished to Holdings or the Company in writing by the such Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Offering Memorandum (excluding or any documents incorporated amendment or supplement thereto), which information is specified in the Initial Purchasers Information Letter or (y) any claim for indemnity made by reference therein) was not sent an Initial Purchaser against the Company or given to such person at or prior the Issuer, only to the written confirmation of the sale of extent such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance claim has previously been satisfied by the Company and Indenture Parties or the Guarantors with Company, respectively, pursuant to the provisions terms of this Section 4 hereof9.
Appears in 1 contract
Samples: Purchase Agreement (Sun Life Assurance Co of Canada Us)
Indemnification of the Initial Purchaser. The Company Manager and each of the Guarantors Issuer agree, jointly and severally agree severally, to indemnify and hold harmless the Initial Purchaser, its affiliates, directors and officers Purchaser and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and Act as follows:
(i) against any and all lossesloss, claimsliability, damages claim, damage and liabilities (includingexpense whatsoever, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise arising out of, or are based upon, of any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Time of Sale Information, the Final Offering Memorandum or the Offering Memorandum, marketing materials listed in Annex A or any the omission or alleged omission to state therein therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that ;
(iii) neither against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the Company nor extent of the aggregate amount paid in settlement of any Guarantor shall be liable in litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever, based upon any such case untrue statement or omission, or any such alleged untrue statement or omission;
(iii) against any breach by Manager or Issuer of its representations or covenants contained herein which has a material adverse effect on the Initial Purchaser; and
(iv) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Initial Purchaser), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever, based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such lossesexpense is not paid under clause (i), claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to the Initial Purchaser furnished to Holdings or the Company in writing by the Initial Purchaser expressly for use therein and (ii) that with respect to any such untrue statement in or omission from or alleged untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (aiii) shall not inure to the benefit of the Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by the Initial Purchaser and any such loss, claim, damage or liability of or with respect to the Initial Purchaser results from the fact that both (A) a copy of the Offering Memorandum (excluding any documents incorporated by reference therein) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantors with the provisions of Section 4 hereofabove.
Appears in 1 contract
