Indemnification of the Purchaser. (i) Subject to the limitations contained in this Section 8.4, the Seller agrees to indemnify, defend and hold harmless the Purchaser and its Affiliates (each, a "Purchaser Indemnified Party") from and against any and all losses, liabilities, and damages, costs and expenses (including reasonable fees and disbursements of counsel) (hereinafter individually, a "Loss" and collectively, "Losses") which arise out of, or result from, (A) any inaccuracy in or any breach of any representation or warranty of the Seller contained in this Agreement or in the officer's certificate delivered by the Seller pursuant to Section 3.2(b)(i) or the failure of each of the representations and warranties of the Seller contained in this Agreement to be true and correct as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; provided however, that for purposes of this Section 8.4(a)(i)(A), liability for a failure of the representations and warranties in Section 4.15 to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effect, (B) any breach of any covenant or agreement of the Seller contained in this Agreement, (C) any Excluded Liability, (D) any Taxes to be paid pursuant to Sections 2.7 and 6.8, or (E) liabilities incurred by the Purchaser resulting from the operation of the Business on or prior to the Closing Date. (ii) Each Purchaser Indemnified Party shall give the Seller prompt written notice of any claim, assertion, event or proceeding (collectively, a "Purchaser Claim") by or in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights of the Purchaser Indemnified Party except to the extent the rights of the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to direct, through counsel of its own choosing reasonably acceptable to the Purchaser, the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser Claim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hearst Argyle Television Inc)
Indemnification of the Purchaser. (i) Subject to the limitations contained in provisions of this Section 8.44.10 (and in addition to the indemnification provisions set forth in Section 4.15), the Seller agrees to indemnify, defend Company will indemnify and hold harmless the Purchaser and its Affiliates directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a "“Purchaser Indemnified Party"”) harmless from and against any and all losses, liabilities, and obligations, claims, contingencies, damages, costs and expenses (expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and disbursements costs of counsel) (hereinafter individually, investigation that any such Purchaser Party may suffer or incur as a "Loss" and collectively, "Losses") which arise out of, result of or result from, (A) any inaccuracy in or relating to any breach of any representation or warranty of the Seller contained in this Agreement representations, warranties, covenants or in the officer's certificate delivered agreements made by the Seller pursuant to Section 3.2(b)(i) or the failure of each of the representations and warranties of the Seller contained in this Agreement to be true and correct as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; provided however, that for purposes of this Section 8.4(a)(i)(A), liability for a failure of the representations and warranties in Section 4.15 to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effect, (B) any breach of any covenant or agreement of the Seller contained Company in this Agreement, . Promptly after receipt by any Person (Cthe “Indemnified Person”) any Excluded Liability, (D) any Taxes to be paid pursuant to Sections 2.7 and 6.8, or (E) liabilities incurred by the Purchaser resulting from the operation of the Business on or prior to the Closing Date.
(ii) Each Purchaser Indemnified Party shall give the Seller prompt written notice of any claimdemand, assertionclaim or circumstances which would or might give rise to a claim or the commencement of any action, event proceeding or proceeding (collectively, a "Purchaser Claim") by or investigation in respect of a third party which indemnity may be sought pursuant to this Section 4.10, such Indemnified Person shall promptly notify the Company in writing and the Company shall assume the defense thereof, including the employment of which counsel reasonably satisfactory to such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder Person, and shall assume the payment of all fees and expenses; provided, however, that any the failure to give such Purchaser Claim will not be deemed a waiver of any rights Indemnified Person so to notify the Company shall not relieve the Company of the Purchaser Indemnified Party its obligations hereunder except to the extent that the rights of the Seller are Company is actually and materially prejudiced by such failure or the Seller otherwise suffers damage as a result of to notify. In any such failure. The Seller proceeding, any Indemnified Person shall have the right to direct, through counsel of retain its own choosing reasonably acceptable counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company and the Indemnified Person shall have mutually agreed to the Purchaser, retention of such counsel; (ii) the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects Company shall have failed promptly to assume the defense of any such Purchaser Claim, proceeding and to employ counsel reasonably satisfactory to such Purchaser Indemnified Party may participate Person in such defenseproceeding; or (iii) in the reasonable judgment of counsel to such Indemnified Person, but representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Company shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Without the prior written consent of the Indemnified Person, which consent shall not be unreasonably withheld, delayed or conditioned, the Company shall not effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such case the expenses Indemnified Party, unless such settlement includes an unconditional release of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for Person from all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss liability arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense out of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser Claimproceeding.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ventyx Biosciences, Inc.)
Indemnification of the Purchaser. (i) 8.1.1 Subject to the limitations contained in terms and conditions of this Section 8.4Article 8, the Seller agrees to Sellers shall indemnify, defend and hold harmless the Purchaser and its Affiliates (eachor the relevant Company or Subsidiary, a "Purchaser Indemnified Party"as the case may be) harmless from and against any and all damages, liabilities and losses, liabilities, and damages, costs and expenses including those resulting from a Tax audit or reassessment (including reasonable fees and disbursements of counsel) (hereinafter individually, individually a "Loss" and collectivelyor collectively "LOSSES"), "Losses") which arise asserted against, resulting in, imposed upon or incurred by the Purchaser, the Companies or the Subsidiaries relating to, arising out of, of or result resulting from, :
(Aa) any inaccuracy in or any breach of any representation or warranty of the Seller Sellers contained in this Agreement or in the officer's certificate delivered by the Seller pursuant to Section 3.2(b)(i) or the failure of each of the representations and warranties of the Seller contained in this Agreement to be true and correct as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; provided however, that for purposes of this Section 8.4(a)(i)(A), liability for a failure of the representations and warranties in Section 4.15 to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effect, Agreement;
(Bb) any breach or violation of any covenant or agreement of the Seller Sellers contained in this AgreementAgreement (other than Article 2); or Except with respect to claims based upon fraud, (C) the right to indemnification provided for in this Article 8.1.1 shall be the Purchaser's exclusive remedy for any Excluded Liability, (D) any Taxes to be paid such inaccuracy or breach of representations or warranty or breach of covenant or agreement.
8.1.2 No indemnification pursuant to Sections 2.7 and 6.8, or (E) liabilities incurred by the Purchaser resulting from the operation of the Business on or prior to the Closing DateArticle 8.
1.1 above will be made:
(iia) Each Purchaser Indemnified Party shall give the Seller prompt written notice of any claimif, assertion, event or proceeding (collectively, a "Purchaser Claim") by or in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights of the Purchaser Indemnified Party except and to the extent that, provision to the rights relevant Loss was made in the relevant Financial Statements;
(b) to the extent that the relevant Losses are due to Purchaser's or, with respect to any period following the Closing, any Company's or Subsidiary's willful misconduct;
(c) if and to the extent that (in the event that the relevant breach can be cured) the Sellers have, within thirty (30) days following receipt by the Sellers of Purchaser's notice, cured such breach by specific performance;
(d) if and to the Seller are prejudiced by such failure extent that Purchaser or the Seller otherwise suffers damage Companies are entitled to receive or have received recovery for the relevant Losses from any other Person (including under any insurance policy) or if and to the extent that non-recovery from any other Person is due to the failure of Purchaser and/or any Company and/or any Subsidiary to use its or their reasonable efforts to obtain such recovery;
(e) if and to the extent that the relevant Losses arise or are increased as a result of such failure. The Seller shall have the right to direct, through counsel of its own choosing reasonably acceptable to the Purchaser, the defense enactment or settlement amendment of any such Purchaser Claim at its own expense. If legal requirement including with regard to Taxes after the Seller elects to assume date of this Agreement;
(f) if the defense relevant Losses arise as a result of the application of any such Purchaser Claimgenerally accepted accounting principles, such Purchaser Indemnified Party may participate procedures, methods and judgments other than those used to prepare the Financial Statements as set forth in such defenseSCHEDULE 3.5;
(g) if it relates to a Loss resulting from a breach of a representation or warranty in Article 3 that was incorrect at the time this Agreement was executed, but in such case was subsequently true and correct at Closing, so long as (i) the expenses Companies and their Subsidiaries shall not have breached their obligations under Section 5.1 of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses this Agreement in connection therewith. If the Seller elects to direct the defense of any with causing such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit representation to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection true and correct; and (ii) and proposes the actions taken by the Sellers, the Companies or the Subsidiaries to settle make such representation or warranty true or correct at Closing shall be at no cost for the Companies, the Subsidiaries or the Purchaser. The Sellers shall endeavor to keep the Purchaser Claim prior reasonably informed of any actions considered to a final judgment thereof be taken to make such representation or warranty true or correct at Closing provided that the failure to forego appeal with respect thereto, then such keep the Purchaser Indemnified Party so informed shall give not affect the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser Claimcarve out under this Article 8.
Appears in 1 contract
Indemnification of the Purchaser. (ia) Subject to the limitations contained set forth in Section 8.1 above and, except in the case of any claim related to Taxes (a "Tax Claim"), which shall be governed exclusively by Section 8.2(b) of this Section 8.4Agreement, the Seller agrees to indemnify, defend and hold harmless indemnify the Purchaser and its successors, permitted assigns, directors, officers, employees and Affiliates (each, a "Purchaser Indemnified PartyIndemnitees") from and against any and all liabilities, losses, liabilitiesexpenses, and damagesfees, including court costs and reasonable attorneys' fees and expenses (including reasonable fees and disbursements "Adverse Consequences"), arising out of counselor resulting from (x) (hereinafter individually, a "Loss" and collectively, "Losses") which arise out of, or result from, (A) any inaccuracy in or any breach of any representation or warranty of the Seller contained in this Agreement 54 61
(1) the BN Sale and (2) the exercise, cancellation or other disposition of the Company Options to the extent the Liabilities are in excess of amounts accrued on the officer's certificate delivered by Closing Balance Sheet in respect of such Company Options, and any and all actions, suits, proceedings, judgments, costs and expenses incidental to any of the foregoing; provided, however, that (A) for purposes of the indemnification provided under Section 8.2(a)(x) (other than in respect of the breach or inaccuracy of Sections 3.6, 3.7, 3.8, 3.24 and 3.28 to which the deductible shall not apply), the Seller pursuant shall have no obligation to indemnify the Purchaser Indemnitees until such time, if any, as, and only to the extent that, the aggregate amount of the Adverse Consequences arising out of all such breaches exceeds $15,000,000 and (B) for purposes of the indemnification provided under Section 3.2(b)(i8.2(a)(x), the Seller shall have no obligation to indemnify the Purchaser Indemnitees in respect of a breach of Section 3.12(a) to the extent the event giving rise to the breach occurred after the date of this Agreement and either was disclosed in writing to the Purchaser or the failure Purchaser otherwise had knowledge of each the event prior to the Closing; and provided, further, that for purposes of the indemnification provided in Section 8.2(a)(x), the obligations of the Seller to indemnify the Purchaser Indemnitees shall be limited to the aggregate payments equal to the Purchase Price (other than in respect of the breach or inaccuracy of the representation and warranties set forth in Sections 3.28 and 3.33 which shall not be so limited). For purposes of the indemnification provided in Section 8.2(a)(x), in determining whether the representations and warranties of the Seller contained have been breached, no effect will be given to any materiality qualifier or dollar threshold set forth in this Agreement to be true and correct as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; provided however, that for purposes of this Section 8.4(a)(i)(A), liability for a failure of the representations and warranties in Section 4.15 to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effect, (B) any breach of any covenant or agreement of the Seller contained in this Agreement, (C) any Excluded Liability, (D) any Taxes to be paid pursuant to Sections 2.7 and 6.8, or (E) liabilities incurred by the Purchaser resulting from the operation of the Business on or prior to the Closing Daterelated definitions.
(ii) Each Purchaser Indemnified Party shall give the Seller prompt written notice of any claim, assertion, event or proceeding (collectively, a "Purchaser Claim") by or in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights of the Purchaser Indemnified Party except to the extent the rights of the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to direct, through counsel of its own choosing reasonably acceptable to the Purchaser, the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser Claim.
Appears in 1 contract
Indemnification of the Purchaser. The ACQUIRED COMPANY and SELLING MEMBER (i) Subject to the limitations contained in this Section 8.4collectively, the “Seller agrees to indemnifyIndemnifying Party”) shall, defend jointly and hold harmless severally, indemnify the Purchaser PURCHASER, and its Affiliates and each of their respective officers, directors, employees, stockholders, partners, members, managers or other equity holders, agents and representatives (each, a "Purchaser “PURCHASER Indemnified Party"”) against, and hold each PURCHASER Indemnified Party harmless against, any and all Losses suffered or incurred by such PURCHASER Indemnified Party, resulting from or arising out of any of the following:
8.1.1 any breach, as of the Execution Date, of any representation or warranty of the ACQUIRED COMPANY and against SELLING MEMBER contained in this Agreement or any exhibit hereto;
8.1.2 any breach or failure to perform any covenant or agreement of the ACQUIRED COMPANY and SELLING MEMBER contained in this Agreement or any agreement or instrument executed by the ACQUIRED COMPANY pursuant to this Agreement;
8.1.3 any and all taxes imposed on or with respect to the ACQUIRED COMPANY that are allocable to or attributable to a Pre-Closing Tax Period, together with any and all employment taxes arising in connection with the transactions contemplated by this Agreement prior to the Execution Date;
8.1.4 (i) any claim by any third party relating to any alleged direct or indirect ownership interest in the ACQUIRED COMPANY or any right to acquire any such ownership interest; or (ii) any pledge or other Encumbrance with respect to any equity securities of the ACQUIRED COMPANY. The ACQUIRED COMPANY’s obligation to indemnify the PURCHASER Indemnified Party shall only arise upon the payment in full of the Purchase Price. For purposes of this Section 8, the term “Losses” means any and all losses, liabilities, and claims, damages, costs and expenses penalties, fines, judgments, awards, settlements, taxes, costs, offsets, demands, fees (including reasonable fees and disbursements of counsel) (hereinafter individually, a "Loss" and collectively, "Losses") which arise out of, or result from, (A) any inaccuracy in or any breach of any representation or warranty of the Seller contained in this Agreement or in the officer's certificate delivered by the Seller pursuant to Section 3.2(b)(i) or the failure of each of the representations and warranties of the Seller contained in this Agreement to be true and correct as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; provided however, that for purposes of this Section 8.4(a)(i)(Aattorneys’ fees), liability for a failure of the representations expenses, disbursements and warranties in Section 4.15 to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effect, (B) any breach of any covenant or agreement of the Seller contained in this Agreement, (C) any Excluded Liability, (D) any Taxes to be paid pursuant to Sections 2.7 and 6.8, or (E) liabilities incurred by the Purchaser resulting from the operation of the Business on or prior to the Closing Dateother obligations.
(ii) Each Purchaser Indemnified Party shall give the Seller prompt written notice of any claim, assertion, event or proceeding (collectively, a "Purchaser Claim") by or in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights of the Purchaser Indemnified Party except to the extent the rights of the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to direct, through counsel of its own choosing reasonably acceptable to the Purchaser, the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser Claim.
Appears in 1 contract
Indemnification of the Purchaser. (ia) Subject to the limitations contained in provisions of this Section 8.48.02, Section 8.06 and the Seller agrees to indemnifyother Sections of this Article 8, defend and hold harmless following the Closing, the Purchaser and each of its Affiliates and Representatives (each, each hereinafter a "“Purchaser Indemnified Party"”) shall be indemnified by the Sellers, severally and not jointly, from and against the amount of any and all losses, liabilities, and damages, costs and expenses Losses incurred by them arising out of:
(including reasonable fees and disbursements of counseli) (hereinafter individually, a "Loss" and collectively, "Losses") which arise out any breach of, or result frominaccuracy in, (A) any inaccuracy in or any breach of any representation or warranty warranty, as of the date of the Original Agreement or as of the Closing, made by such Seller contained in under Article 3 of this Agreement or any certificate delivered pursuant hereto or made by NewCo in the officer's certificate delivered Joinder;
(ii) any breach or failure to perform by the such Seller pursuant to Section 3.2(b)(i) of any of its covenants or the failure of each of the representations and warranties of the Seller contained in agreements under this Agreement to be true and correct or any document contemplated hereby;
(iii) any breach of, or inaccuracy in, any representation or warranty, as of the Closing Date with date of the same effect as though such representations and warranties had been made on and Original Agreement or as of the Closing Date; provided howeverClosing, that for purposes made by the Company under Article 4 of this Section 8.4(a)(i)(AAgreement or any certificate delivered pursuant hereto or made by NewCo in the Joinder;
(iv) any breach or failure to perform by the Company of its covenants or agreements under this Agreement or any document contemplated hereby;
(v) (w) the NewCo Employee Liabilities, (x) the failure to deliver an LTIP Acknowledgment, (y) the Specified Matters or (z) any LTIP Remediation Costs (to the extent not counted in Company Indebtedness) (the indemnity provided in this clause (v), liability for a failure the “Employee Matters Indemnity”); and
(vi) any Loss related to any Excluded Contract (the indemnity provided in this clause (vi), the “Specific Indemnity”). Notwithstanding anything herein to the contrary, no representation, warranty or covenant made by the Sellers or the Company in respect of Taxes, including under Section 4.19 (other than the representations and warranties in Sections 4.19(j), (o) or (q)), shall apply or give rise to any claims for Losses with respect to Taxes arising in the Post-Closing Tax Period, other than any imputed underpayments imposed under Section 4.15 to be true and correct as 6225 of the Code in a Post-Closing Date Tax Period which relate to a Pre-Closing Tax Period. Except to the extent of its obligations in respect of the Specific Indemnity, in no event shall arise only if either Seller be responsible for Losses in excess of the portion of the Final Purchase Price paid to such failure Seller.
(b) Notwithstanding anything to the contrary in this Agreement, the Purchaser Indemnified Parties shall not be entitled to indemnification under Section 8.02(a) unless the Purchaser Indemnified Party has provided the Sellers’ Representative with written notice of such claim in accordance with Section 8.04(a) or 8.05(a), as applicable.
(c) The Purchaser shall use, and shall cause its Affiliates (including the Company and its Subsidiaries after the Closing) to use, commercially reasonable efforts in accordance with applicable Law to mitigate any Loss for which indemnification may be sought hereunder upon becoming aware of any event which would reasonably be expected to have a Material Adverse Effect, (B) any breach of any covenant or agreement of the Seller contained in this Agreement, (C) any Excluded Liability, (D) any Taxes to be paid pursuant to Sections 2.7 and 6.8to, or (E) liabilities incurred by the Purchaser resulting from the operation of the Business on or prior to the Closing Datedoes, give rise thereto.
(ii) Each Purchaser Indemnified Party shall give the Seller prompt written notice of any claim, assertion, event or proceeding (collectively, a "Purchaser Claim") by or in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights of the Purchaser Indemnified Party except to the extent the rights of the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to direct, through counsel of its own choosing reasonably acceptable to the Purchaser, the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser Claim.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Hyatt Hotels Corp)
Indemnification of the Purchaser. (ia) Subject to the limitations contained in this Section 8.4, the The Seller agrees to shall indemnify, defend and hold harmless the Purchaser and its officers, directors, employees, agents and its Affiliates (each, a "“Purchaser Indemnified Party"Indemnitee”) from harmless from, and against will reimburse such Purchaser Indemnitee for, any and all losses, liabilities, and damages, costs and expenses (including reasonable fees and disbursements of counsel) (hereinafter individually, a "Loss" and collectively, "Losses") which Losses incurred by such Purchaser Indemnitee to the extent that such Losses arise out of, of or result from, :
(Ai) any the inaccuracy in or any breach of any representation or warranty made by the Seller in this Agreement;
(ii) the failure by the Seller to perform or observe any term, provision and/or covenant of this Agreement;
(iii) any inadequate, inaccurate or improper acts or omissions by the Seller, actual or alleged, related to the servicing of the Mortgage Loans with respect to which the Transfer Date has occurred, including, without limitation, any failure, actual or alleged, to comply with Applicable Requirements, relating to the period prior to the related Transfer Date;
(iv) any Excluded Obligation with respect to Servicing Rights with respect to which the Transfer Date has occurred;
(v) the matters described in Section 6.02, subject to the limitations set forth therein; or
(vi) any act or omission of the Seller contained in the performance of its obligations under this Agreement.
(b) Notwithstanding anything in this Agreement or in to the officer's certificate delivered by contrary, for purposes of establishing whether any matter is indemnifiable under Section 9.01(a), the Seller pursuant to Section 3.2(b)(i) or the failure of each accuracy of the representations and warranties of the Seller contained herein shall be determined without giving effect to the qualifications to such representations and warranties concerning knowledge, materiality or other exception (including, without limitation, any reference to “material adverse effect,” “the best of Seller’s knowledge,” or any other terms similar thereto). In that regard, the Parties acknowledge and agree that regardless of any qualifications or limitations contained in this Agreement regarding the Seller’s knowledge, or to materiality or to exceptions noted in a representation or warranty or disclosed in any schedule, the Seller shall be required to fully indemnify the Purchaser for all Losses arising in whole or in part from the breach of such representation or warranty ***.
(c) In addition, and notwithstanding anything in this Agreement to be true and correct as the contrary, but subject to the limitations of applicable law, the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; provided however, that for purposes of this Section 8.4(a)(i)(A), liability for a failure of the representations and warranties in Section 4.15 to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effect, (B) any breach of any covenant or agreement indemnification obligations of the Seller contained in under this Agreement, (C) any Excluded Liability, (D) any Taxes to Agreement shall not be paid pursuant to Sections 2.7 and 6.8, or (E) liabilities incurred limited by the Purchaser resulting from the operation of the Business on or prior to the Closing Datetime ***.
(iid) Each Seller shall pay to Purchaser Indemnified Party shall give the Seller prompt written notice of Indemnitee any claim, assertion, event or proceeding non-disputed Losses within thirty (collectively, a "Purchaser Claim"30) by or in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights days of the Purchaser Indemnified Party except to the extent the rights Seller’s receipt of the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to directan invoice therefor, through counsel of its own choosing reasonably acceptable to the Purchaser, the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller together with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser Claimsupporting documentation.
Appears in 1 contract
Indemnification of the Purchaser. (ia) Subject to the limitations contained in this Section 8.4, the The Seller agrees to shall indemnify, defend and hold harmless the Purchaser and its officers, directors, employees, agents and its Affiliates (each, a "“Purchaser Indemnified Party"Indemnitee”) from harmless from, and against will reimburse such Purchaser Indemnitee for, any and all losses, liabilities, and damages, costs and expenses (including reasonable fees and disbursements of counsel) (hereinafter individually, a "Loss" and collectively, "Losses") which Losses incurred by such Purchaser Indemnitee to the extent that such Losses arise out of, of or result from, :
(Ai) any the inaccuracy in or any breach of any representation or warranty made by the Seller in this Agreement;
(ii) the failure by the Seller to perform or observe any term, provision and/or covenant of this Agreement;
(iii) any inadequate, inaccurate or improper acts or omissions by the Seller, actual or alleged, related to the servicing of the Mortgage Loans with respect to which the Transfer Date has occurred, including, without limitation, any failure, actual or alleged, to comply with Applicable Requirements, relating to the period prior to the related Transfer Date;
(iv) any Excluded Obligation with respect to Servicing Rights with respect to which the Transfer Date has occurred;
(v) the matters described in Section 6.02, subject to the limitations set forth therein; or
(vi) any act or omission of the Seller contained in the performance of its obligations under this Agreement.
(b) Notwithstanding anything in this Agreement or in to the officer's certificate delivered by contrary, for purposes of establishing whether any matter is indemnifiable under Section 9.01(a), the Seller pursuant to Section 3.2(b)(i) or the failure of each accuracy of the representations and warranties of the Seller contained herein shall be determined without giving effect to the qualifications to such representations and warranties concerning knowledge, materiality or other exception (including, without limitation, any reference to “material adverse effect,” “the best of Seller’s knowledge,” or any other terms similar thereto). In that regard, the Parties acknowledge and agree that regardless of any qualifications or limitations contained in this Agreement regarding the Seller’s knowledge, or to materiality or to exceptions noted in a representation or warranty or disclosed in any schedule, the Seller shall be required to fully indemnify the Purchaser for all Losses arising in whole or in part from the breach of such representation or warranty [***].
(c) In addition, and notwithstanding anything in this Agreement to be true and correct as the contrary, but subject to the limitations of applicable law, the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; provided however, that for purposes of this Section 8.4(a)(i)(A), liability for a failure of the representations and warranties in Section 4.15 to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effect, (B) any breach of any covenant or agreement indemnification obligations of the Seller contained in under this Agreement, (C) any Excluded Liability, (D) any Taxes to Agreement shall not be paid pursuant to Sections 2.7 and 6.8, or (E) liabilities incurred limited by the Purchaser resulting from the operation of the Business on or prior to the Closing Datetime[***].
(iid) Each Seller shall pay to Purchaser Indemnified Party shall give the Seller prompt written notice of Indemnitee any claim, assertion, event or proceeding non-disputed Losses within thirty (collectively, a "Purchaser Claim"30) by or in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights days of the Purchaser Indemnified Party except to the extent the rights Seller’s receipt of the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to directan invoice therefor, through counsel of its own choosing reasonably acceptable to the Purchaser, the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller together with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser Claimsupporting documentation.
Appears in 1 contract
Samples: Transfer Agreement (New Residential Investment Corp.)
Indemnification of the Purchaser. (i) Subject to the limitations contained set forth in this SECTION 8.6 above and Section 8.49.1 (C) and (D) below, and to the extent the Purchaser or Purchaser Indemnified Party is not indemnified under a Transaction Document, the Seller agrees to indemnify, defend indemnify and hold harmless the Purchaser and its Affiliates (eachincluding, from and after the Closing, the Company) and each of their respective directors, officers, employees, and each of their respective successors and permitted assigns (each a "Purchaser Indemnified PartyPURCHASER INDEMNIFIED PARTY") ), from and against any and all liabilities, claims, damages, losses, liabilitieswhether or not arising out of Third-Party Claims, including, without limitation, penalties, expenses and damagesfees, including court costs and reasonable attorneys' fees and expenses (including reasonable fees and disbursements of counsel) (hereinafter individually, a "Loss" and collectively, "LossesADVERSE CONSEQUENCES") which arise such Purchaser Indemnified Party has suffered, incurred or become subject to arising out of, based upon or result otherwise in respect or resulting from, :
(Ai) any inaccuracy in or any breach of any representation or warranty of the Seller contained made in this Agreement or in the officer's certificate delivered by the Seller pursuant any other Transaction Document to Section 3.2(b)(iwhich it is a party;
(ii) any breach or the failure nonfulfillment of each of the representations and warranties any covenant or obligation of the Seller contained in this Agreement to be true and correct as or the NICO Reinsurance Agreement;
(iii) all liabilities of any kind whatsoever of the Closing Date Company incurred or arising with the same effect as though such representations and warranties had been made on and as of the Closing Date; provided however, that for purposes of this Section 8.4(a)(i)(A), liability for a failure of the representations and warranties in Section 4.15 respect to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effect, (B) any breach of any covenant or agreement of the Seller contained in this Agreement, (C) any Excluded Liability, (D) any Taxes to be paid pursuant to Sections 2.7 and 6.8, or (E) liabilities incurred by the Purchaser resulting from the operation of the Business on or periods prior to the Closing Date.
Date (ii) Each Purchaser Indemnified Party shall give the Seller prompt written notice of regardless when any claim, assertion, event or proceeding (collectively, a "Purchaser Claim") by or claims are made in respect of a third party such liabilities); and
(iv) without limiting the generality of which such Purchaser Indemnified Party has knowledge concerning any Loss clause (iii) above, (x) the Employment Agreement between the Company and Xxxxxxxx Xxxxx, (y) the case known as to which such Purchaser Indemnified Party may request indemnification hereunder providedConsolidated Rail Corp. vs. Ace, however, that any failure to give such Purchaser Claim will not be deemed a waiver et. al. (P.A. Ct. of any rights of the Purchaser Indemnified Party except to the extent the rights of the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to direct, through counsel of its own choosing reasonably acceptable to the Purchaser, the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser Claim.Common
Appears in 1 contract
Samples: Stock Purchase Agreement (Jacobs Financial Group, Inc.)
Indemnification of the Purchaser. (i) Subject to Sections 8.4 and 8.7 and the limitations contained in other provisions of this Section 8.4Article VIII, from and after the Closing Date, the Seller Indemnifying Party hereby agrees to indemnify, defend and hold harmless the Purchaser and its Affiliates Controlled subsidiaries (eachincluding, a "Purchaser following the Closing, the Group Companies), their respective Representatives and the heirs, executors, successors and assigns of any of the foregoing (the “Indemnified Party") from ”), against and against in respect of any and all losses, liabilitiesinterest, and damagespenalties, costs and expenses costs, expenses, Actions, Liabilities, Taxes, judgments, deficiencies or damages but for the avoidance of doubt not including any such amounts incurred in connection with any indemnification claim hereunder by the Indemnified Party to the extent that the Indemnified Party is not successful in such claim (including reasonable fees and disbursements all of counsel) (hereinafter individually, a "Loss" and the foregoing collectively, "“Losses"”) which arise out ofpaid, suffered, incurred or sustained by, or imposed upon the Indemnified Party to the extent arising in whole or in part out of or as a result from, of or in connection with (Awhether or not involving a Third Party Claim):
(a) any inaccuracy in or any breach the failure of any representation or warranty of the Seller contained in this Agreement or in the officer's certificate delivered by the Seller pursuant to Section 3.2(b)(i) or the failure of each of the representations and warranties of the Seller contained in this Agreement herein to be true and correct as of the Closing Agreement Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; provided however, that for purposes of this Section 8.4(a)(i)(A), liability for a failure of Date as if made at the representations and warranties in Section 4.15 to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effect, Closing;
(Bb) any breach of any covenant covenant, agreement or agreement of undertaking made by the Seller contained in this Agreementor, (C) with respect to any Excluded Liability, (D) any Taxes to be paid pursuant to Sections 2.7 and 6.8, or (E) liabilities incurred by the Purchaser resulting from the operation of the Business on or periods prior to the Closing Date., any Group Company, in this Agreement or any Additional Agreement;
(iic) Each any amounts owing to the Purchaser Indemnified Party shall give the Seller prompt written notice of pursuant to Section 2.8;
(d) any claim, assertion, event or proceeding (collectively, a "Purchaser Claim") by or in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights pre-Closing Indebtedness of the Purchaser Indemnified Party except to Group Companies other than the extent Assumed Indebtedness;
(e) the rights of Special Tax Indemnity; or
(f) the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to direct, through counsel of its own choosing reasonably acceptable to the Purchaser, the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser ClaimReorganization Tax Indemnity.
Appears in 1 contract
Samples: Share Exchange Agreement (Legacy Acquisition Corp.)
Indemnification of the Purchaser. (i) Subject to the limitations contained set forth in this Section 8.45.02 below, the Seller agrees Company and the Stockholders each hereby jointly and individually agree to indemnify, defend defend, and hold harmless the Purchaser Purchaser, its officers, directors, employees, agents, attorneys, and its Affiliates shareholders (each, a the "Purchaser Indemnified PartyIndemnitees" or an "Indemnitee") from and against any and all demands, claims, actions, or causes of action, assessments, losses, taxes, damages, liabilities, costs, and damagesexpenses, costs including, without limitation, interest, penalties, and reasonable attorneys' fees and expenses (including reasonable fees and disbursements of counsel) (hereinafter individuallycollectively "Damages"), a "Loss" and collectivelyasserted against, "Losses") which arise out ofassessed upon, resulting to, imposed upon, or result from, incurred by an Indemnitee by reason of or resulting from (Aa) any inaccuracy in or any a material breach of any representation or warranty of the Seller contained in this Agreement or in the officer's certificate delivered by the Seller pursuant to Section 3.2(b)(i) or the failure of each of the representations and warranties of the Seller contained in this Agreement to be true and correct as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; provided howeverrepresentation, that for purposes of this Section 8.4(a)(i)(A)warranty, liability for a failure of the representations and warranties in Section 4.15 to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effectcovenant, (B) any breach of any covenant obligation, or agreement of the Seller Company or the Stockholders contained in or made pursuant to this Agreement, (C) any Excluded Liability, (D) any Taxes to be paid pursuant to Sections 2.7 including the Schedules and 6.8Exhibits hereto, or any facts or circumstances constituting such a breach; or (Eb) liabilities incurred by the Purchaser resulting from the operation of the Business on Company's business, including, but not limited to, any products sold or services rendered, or any Tax liability for any period, prior to the Closing Date.
Effective Date (ii) Each Purchaser collectively the "Indemnified Party shall give Claims"). In addition, the Seller prompt written notice Stockholders agree to indemnify the Indemnitee for such Damages as they are incurred by the Indemnitee irrespective of any claimongoing or continuing legal proceedings and the relative timeframes and issues associated with such proceedings, assertion, event or proceeding (collectively, a "Purchaser Claim") by the relative success or nonsuccess the Indemnitee may experience in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights of proceedings; and the Purchaser Indemnified Party except to the extent the rights of the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to directoffset, through counsel withhold, and deduct such Damages from any payment of its own choosing reasonably acceptable the Earn Out Amount required to the Purchaser, the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party shall be paid made by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access pursuant to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence Section 1.03 of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser ClaimAgreement.
Appears in 1 contract
Indemnification of the Purchaser. (ia) Subject to the limitations contained in provisions of this Section 8.47.02 and the other Sections of this Article 7, the Seller agrees to indemnify, defend and hold harmless the Purchaser and each of its Affiliates Affiliates, officers, directors, employees, agents, successors and assigns and, after the Effective Time, Purchaser, the Company and each of their respective Affiliates, officers, directors, employees, agents, successors and assigns (each, each hereinafter a "“Purchaser Indemnified Party"”) shall be indemnified by each of the Sellers, jointly and severally, from and against the amount of any and all losses, liabilities, and damages, costs and expenses Losses incurred or sustained by or imposed upon any of them with respect to or by reason of:
(including reasonable fees and disbursements of counsel) (hereinafter individually, a "Loss" and collectively, "Losses") which arise out of, or result from, (Ai) any failure, breach or inaccuracy in or any breach of any representation representations or warranty of warranties made by the Seller contained in Sellers under this Agreement or contained in the officer's certificate any certificate, document or instrument delivered by the Seller Sellers or the Company hereunder;
(ii) any breach, default or lack of performance on the part of the Sellers or the Company of any of its covenants or agreements under this Agreement or the Ancillary Agreements;
(iii) any Liabilities of the Company arising under or in connection with any Environmental Laws with respect to any of the facilities leased by the Company pursuant to Section 3.2(b)(ithe Related Party Leases;
(iv) or the failure of each any Liabilities of the representations and warranties of the Seller contained Company for any Indebtedness which have not been paid in this Agreement to be true and correct full or otherwise discharged for any reason as of the Closing Date with Effective Time, including but not limited to, any Liabilities for Indebtedness owed to Xxxxx Fargo Bank, NA, KIT International, Inc., Xxxx-Xxxxxx, W. Xxxxx Xxxxxx, International Steel City Company, Inc. and Xxxxx Xxxxxxx;
(v) any Liabilities of the same effect as though such representations and warranties had Company or the Sellers for any Company Transaction Expenses which have not been made on and paid in full or otherwise discharged for any reason as of the Closing DateEffective Time; provided however, that for purposes of this Section 8.4(a)(i)(A), liability for a failure and
(vi) any Liabilities of the representations and warranties Company arising under or in Section 4.15 to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effect, (B) any breach of any covenant or agreement of the Seller contained in this Agreement, (C) any Excluded Liability, (D) connection with any Taxes relating to be paid pursuant to Sections 2.7 and 6.8, or (E) liabilities incurred by the Purchaser resulting from the operation of the Business periods ending on or prior to the Closing Date.
(ii) Each Purchaser Indemnified Party shall give the Seller prompt written notice of any claim, assertion, event or proceeding (collectively, a "Purchaser Claim") by or in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights of the Purchaser Indemnified Party except to the extent the rights of the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to direct, through counsel of its own choosing reasonably acceptable to the Purchaser, the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (iiSections 7.02(a)(ii), withdraws from the defense of such asserted liability(iii), or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim(iv), or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (iiv) and proposes (vi) are hereinafter referred to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give as the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser Claim.“Specified Indemnity Claims”)
Appears in 1 contract
Samples: Stock Purchase Agreement (Gibraltar Industries, Inc.)
Indemnification of the Purchaser. (ia) Subject to the limitations contained in provisions of this Section 8.48.02, Section 8.06 and the Seller agrees to indemnifyother Sections of this Article 8, defend and hold harmless following the Closing, the Purchaser and each of its Affiliates and Representatives (each, each hereinafter a "“Purchaser Indemnified Party"”) shall be indemnified by the Sellers, severally and not jointly, from and against the amount of any and all losses, liabilities, and damages, costs and expenses Losses incurred by them arising out of:
(including reasonable fees and disbursements of counseli) (hereinafter individually, a "Loss" and collectively, "Losses") which arise out any breach of, or result frominaccuracy in, (A) any inaccuracy in or any breach of any representation or warranty warranty, as of the date hereof or as of the Closing, made by such Seller contained in under Article 3 of this Agreement or any certificate delivered pursuant hereto or made by NewCo in the officer's certificate delivered Joinder;
(ii) any breach or failure to perform by the such Seller pursuant to Section 3.2(b)(i) of any of its covenants or the failure of each of the representations and warranties of the Seller contained in agreements under this Agreement to be true and correct or any document contemplated hereby;
(iii) any breach of, or inaccuracy in, any representation or warranty, as of the Closing Date with the same effect as though such representations and warranties had been made on and date hereof or as of the Closing Date; provided howeverClosing, that for purposes made by the Company under Article 4 of this Section 8.4(a)(i)(AAgreement or any certificate delivered pursuant hereto or made by NewCo in the Joinder;
(iv) any breach or failure to perform by the Company of its covenants or agreements under this Agreement or any document contemplated hereby;
(v) (w) the NewCo Employee Liabilities, (x) the failure to deliver an LTIP Acknowledgment, (y) the Specified Matters or (z) any LTIP Remediation Costs (to the extent not counted in Company Indebtedness) (the indemnity provided in this clause (v), liability for a failure the “Employee Matters Indemnity”); and
(vi) any Loss related to any Excluded Contract (the indemnity provided in this clause (vi), the “Specific Indemnity”). Notwithstanding anything herein to the contrary, no representation, warranty or covenant made by the Sellers or the Company in respect of Taxes, including under Section 4.19 (other than the representations and warranties in Sections 4.19(j), (o) or (q)), shall apply or give rise to any claims for Losses with respect to Taxes arising in the Post-Closing Tax Period, other than any imputed underpayments imposed under Section 4.15 to be true and correct as 6225 of the Code in a Post-Closing Date Tax Period which relate to a Pre-Closing Tax Period. Except to the extent of its obligations in respect of the Specific Indemnity, in no event shall arise only if either Seller be responsible for Losses in excess of the portion of the Final Purchase Price paid to such failure Seller.
(b) Notwithstanding anything to the contrary in this Agreement, the Purchaser Indemnified Parties shall not be entitled to indemnification under Section 8.02(a) unless the Purchaser Indemnified Party has provided the Sellers’ Representative with written notice of such claim in accordance with Section 8.04(a) or 8.05(a), as applicable.
(c) The Purchaser shall use, and shall cause its Affiliates (including the Company and its Subsidiaries after the Closing) to use, commercially reasonable efforts in accordance with applicable Law to mitigate any Loss for which indemnification may be sought hereunder upon becoming aware of any event which would reasonably be expected to have a Material Adverse Effect, (B) any breach of any covenant or agreement of the Seller contained in this Agreement, (C) any Excluded Liability, (D) any Taxes to be paid pursuant to Sections 2.7 and 6.8to, or (E) liabilities incurred by the Purchaser resulting from the operation of the Business on or prior to the Closing Datedoes, give rise thereto.
(ii) Each Purchaser Indemnified Party shall give the Seller prompt written notice of any claim, assertion, event or proceeding (collectively, a "Purchaser Claim") by or in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights of the Purchaser Indemnified Party except to the extent the rights of the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to direct, through counsel of its own choosing reasonably acceptable to the Purchaser, the defense or settlement of any such Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser Claim.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Hyatt Hotels Corp)
Indemnification of the Purchaser. (i) Subject to the limitations contained in this Section 8.4provisions of Sections 9.2 and 9.6, the Seller agrees Company and the Principal Stockholders, individually and only to the extent of their respective obligations hereunder, shall indemnify, defend save and hold harmless the each Purchaser Indemnitee against and its Affiliates (eachfrom all Damages sustained or incurred by any Purchaser Indemnitee, as a "Purchaser Indemnified Party") from and against any and all losses, liabilities, and damages, costs and expenses (including reasonable fees and disbursements of counsel) (hereinafter individually, a "Loss" and collectively, "Losses") which arise out result of, or result from, (A) arising out of or by virtue of:
9.1.1 any inaccuracy in or any breach of any representation and warranty made by the Company or warranty the Principal Stockholders to Purchaser herein or in any certificate or closing document delivered to Purchaser in connection herewith;
9.1.2 the breach by the Company or any Principal Stockholder of, or failure of the Seller contained in this Agreement Company or in the officer's certificate delivered by the Seller pursuant any Principal Stockholder to Section 3.2(b)(i) or the failure of each comply with, any of the representations and warranties of the Seller contained in covenants or obligations under this Agreement to be true performed by the Company or the Principal Stockholders (including their obligations under this ARTICLE IX);
9.1.3 acts or omissions of the Company and correct the Subsidiaries, or of any former subsidiaries of the Company, on or before the Closing Date, including the operation of the Business before the Closing Date;
9.1.4 Taxes which are unpaid as of the Closing Date and which are imposed on the Company or any of the Subsidiaries with the same effect as though such representations and warranties had been made respect to (a) any taxable period ending on and as of or before the Closing Date; provided however, that for purposes of this Section 8.4(a)(i)(A), liability for a failure of the representations and warranties in Section 4.15 to be true and correct as of the Closing Date shall arise only if such failure has or would reasonably be expected to have a Material Adverse Effect, (B) any breach of any covenant or agreement of the Seller contained in this Agreement, (C) any Excluded Liability, (D) any Taxes to be paid pursuant to Sections 2.7 and 6.8, or (Eb) liabilities incurred the pre-Closing portion of any taxable period which begins before, and ends after, the Closing Date, to the extent the liability for such Taxes exceeds the accrual for Taxes contained on the Closing Balance Sheet; or
9.1.5 without being limited by Sections 9.1.1 through 9.1.4 above and without regard to the Purchaser resulting from the operation fact that any one or more of the Business items referred to in this Section 9.1.5 may be disclosed in the Disclosure Schedule or in any documents included or referred to therein: (a) any Plan or Welfare Plan which either the Company, one of the Subsidiaries or an ERISA Affiliate has at any time maintained or administered or to which the Company, one of the Subsidiaries or any ERISA Affiliate has at any time contributed (including any liability for health continuation requirements under Code Section 4980B or Part 6 of Subtitle B of Title I of ERISA and any liability arising pursuant to Title IV of ERISA for plan termination, withdrawal or partial withdrawal from any Multiemployer Plan, or any lien to enforce any Title IV liability); any benefits accrued pursuant to any Welfare Plan or Employee Benefit Plan at or prior to the Closing; or any action or failure to act, in whole or in part, at or prior to the Closing with respect 50 to any Plan, Welfare Plan or Employee Benefit Plan; or (b) any violation of, or delinquency in respect to, any decree, order or arbitration award or Law in effect on or prior to the Closing Date.
(ii) Each Purchaser Indemnified Party shall give Date of or agreement of either the Seller prompt written notice Company or one of the Subsidiaries with, or any claimlicense or Permit granted to the Company or one of the Subsidiaries from, assertion, event any Governmental or proceeding (collectively, a "Purchaser Claim") by or in respect of a third party of which such Purchaser Indemnified Party has knowledge concerning any Loss as Regulatory Authority to which such Purchaser Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Purchaser Claim will not be deemed a waiver of any rights the Company or one of the Purchaser Indemnified Party except to Subsidiaries is subject. Notwithstanding the extent the rights of the Seller are prejudiced by such failure or the Seller otherwise suffers damage as a result of such failure. The Seller shall have the right to direct, through counsel of its own choosing reasonably acceptable to the Purchaserforegoing, the defense or settlement of any such Company's obligation to indemnify Purchaser Claim at its own expense. If the Seller elects to assume the defense of any such Purchaser Claim, such Purchaser Indemnified Party may participate in such defense, but in such case the expenses of such Purchaser Indemnified Party under this Section 9.1 shall be paid by such the Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the Seller with access to its records and personnel relating to any such Purchaser Claim during normal business hours and shall otherwise cooperate with the Seller in the defense or settlement thereof, and the Seller shall reimburse such Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Seller elects to direct the defense of any such Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any Loss arising from such Purchaser Claim, unless the Seller consents in writing to such payment or unless the Seller, subject to the last sentence of this subsection (ii), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of the Seller is entered against the Purchaser Indemnified Party for such Loss. If the Seller shall fail to defend any Purchaser Claim, or if, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, terminate at the Seller's expense. If such Purchaser Indemnified Party assumes the defense of such Purchaser Claim pursuant to this subsection (ii) and proposes to settle such Purchaser Claim prior to a final judgment thereof or to forego appeal with respect thereto, then such Purchaser Indemnified Party shall give the Seller prompt written notice thereof and the Seller shall have the right to participate in the settlement or assume or reassume the defense of such Purchaser ClaimClosing.
Appears in 1 contract
