Obligation to Indemnify. (a) Buyer hereby assumes and agree to save, indemnify and hold harmless Seller from and against, and shall on demand reimburse Seller for: (i) any and all loss, liability, damage or deficiency suffered or incurred by Seller by reason of any misrepresentation or breach of warranty by Buyer or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer under this Agreement or in any agreement, certificate, document or instrument executed by Buyer and delivered to Seller pursuant to or in connection with this Agreement; and (ii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a). (b) Seller hereby assumes and agrees to save, indemnify and hold harmless Buyer from, against and in respect of, and shall on demand reimburse Buyer for: (i) any and all loss, liability, damage or deficiency suffered or incurred by Buyer by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller under this Agreement or any agreement, certificate, document or instrument executed by Seller and delivered to Buyer pursuant to or in connection with this Agreement; (ii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement; (iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof); (iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time; (v) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing; (vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon; (vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by Seller; and (viii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b).
Appears in 1 contract
Samples: Purchase and Sale Agreement (New Paradigm Software Corp)
Obligation to Indemnify. (a) Buyer On the terms and subject to the limitations set forth herein, Parent hereby assumes and agree agrees to save, indemnify and hold harmless Seller Shareholders from and against, and shall on demand reimburse Seller Shareholders for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Seller Shareholders by reason of any misrepresentation or breach of warranty by Buyer Parent or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer Parent under this Agreement or in any agreement, certificate, document or instrument executed by Buyer Parent and delivered to Seller the Company pursuant to or in connection with this Agreement; and
(ii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, settlement payments, awards, fines, penalties, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a).
(b) Seller On the terms and subject to (i) the limitations set forth herein, and (ii) the Disclosure Schedules attached hereto, the Major Shareholders hereby assumes jointly and agrees severally assume and agree to save, indemnify and hold harmless Buyer Parent and its Affiliates and their respective directors, officers, shareholders, agents, successors and assigns, including after the Closing, the Company (collectively, "Parent Indemnitees") from, against and in respect of, and shall on demand reimburse Buyer Parent for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Buyer Parent or by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller any of the Company, any Major Shareholder under this Agreement or any agreement, certificate, document or instrument executed by Seller any of the Company or a Major Shareholder and delivered to Buyer Parent pursuant to or in connection with this Agreement;
(ii) any and all lossTaxes which are due or payable by Company, liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as arise out of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale operation of goods or services, state of facts or other condition which occurred or existed Company's business on or before prior to the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under reflected on the terms of this AgreementClosing Balance Sheet;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty Company and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer Parent by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of SellerCompany, whether by reason of or in connection with any of the transactions contemplated by this Agreement;
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by the Company and/or Parent by reason of any claim or entitlement by any person or entity for any finder's fee, commission or other compensation in connection with the transactions contemplated by this Agreement and arising out of any contact by any Major Shareholder or otherwise to by the extent based on Company with any employment of such employee by Sellerclaimant; and
(viiiv) any and all actions, suits, proceedings, claims, demands, assessments, judgments, settlement payments, awards, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the reasonable possibility of the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b).
Appears in 1 contract
Obligation to Indemnify. Borrower agrees to indemnify and hold harmless Administrative Agent, Documentation Agent, each Lender and each of their affiliates and their respective officers, directors, employees, agents, and advisors (aeach, an Indemnified Party) Buyer from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees and expenses) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation, or proceeding or preparation of defense in connection therewith) the Loan Documents, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Loans, or the manufacture, storage, transportation, release or disposal of any Hazardous Material on, from, over or affecting any of the Collateral or any of the assets, properties, or operations of any Covered Person or any predecessor in interest, directly or indirectly, except to the extent such claim, damage, loss, liability, cost, or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by Borrower, its directors, shareholders or creditors or an Indemnified Party or any other Person or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby assumes are consummated. Borrower agrees not to assert any claim against Administrative Agent, Documentation Agent, any Lender, any of their affiliates, or any of their respective directors, officers, employees, attorneys, agents, and agree advisers, on any theory of liability, for special, indirect, consequential, or punitive damages arising out of or otherwise relating to savethe Loan Documents, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Loans. Borrower shall pay, indemnify and hold harmless Seller the Indemnified Parties for, from and against, and shall on demand promptly reimburse Seller the Indemnified Parties for:
(i) , any and all loss, liability, damage or deficiency suffered or incurred by Seller by reason of any misrepresentation or breach of warranty by Buyer or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer under this Agreement or in any agreement, certificate, document or instrument executed by Buyer and delivered to Seller pursuant to or in connection with this Agreement; and
(ii) any and all actions, suits, proceedings, claims, demandsdamages, assessmentsliabilities, judgmentslosses, costs and expenses, expenses (including reasonable attorneys' feesfees and expenses and amounts paid in settlement) incurred, incident to any of paid or sustained by the foregoingIndemnified Parties, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a).
(b) Seller hereby assumes and agrees to save, indemnify and hold harmless Buyer from, against and in respect of, and shall on demand reimburse Buyer for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Buyer by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller under this Agreement or any agreement, certificate, document or instrument executed by Seller and delivered to Buyer pursuant to or in connection with this Agreement;
(ii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior relating to the Closing Date, and/or (C) any environmental complaint and/or any demand Acquisition Documents or enforcement by Administrative Agent or Documentation Agent of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue its rights with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by Seller; and
(viii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b)thereto.
Appears in 1 contract
Obligation to Indemnify. (a) Buyer hereby assumes If the Closing occurs and agree subject to savethe terms, indemnify conditions and limitations set forth herein, Seller shall indemnify, defend and hold the Purchaser Indemnitees harmless for any Loss incurred or suffered by any of them as a result of or arising out of (A)(i) a breach of a representation or warranty by Seller from in this Agreement or any Ancillary Agreement (it being understood that representations and against, and shall on demand reimburse Seller for:
warranties that are made as of a specific date speak only as of that date); (iA)(ii) any and all loss, liability, damage or deficiency suffered or incurred by Seller by reason breach of any misrepresentation agreement, term, provision, condition, obligation, or breach of warranty by Buyer or nonfulfillment of any covenant or agreement to be performed or complied with satisfied by Buyer under this Agreement or in any agreement, certificate, document or instrument executed by Buyer and delivered to Seller pursuant to or in connection with this Agreement; and
(iiA)(iii) any third-party personal injury or tort claims regarding Seller’s use, ownership and/or operation of the Property (or any party thereof) prior to the Closing but excluding the Assumed Liabilities and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident any Environmental Claims released pursuant to Section 1.7(d)(iv); (A)(iv) any claim arising from the Assumed Contracts relating to any of the foregoing, act or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a).
(b) Seller hereby assumes and agrees to save, indemnify and hold harmless Buyer from, against and in respect of, and shall on demand reimburse Buyer for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Buyer by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller under this Agreement or any agreement, certificate, document or instrument executed by Seller and delivered to Buyer pursuant to or in connection with this Agreement;
(ii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or omission prior to the Closing Date, and/or ; and (A)(v) any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or claim arising from inaccuracy or material default alleged in any act, transaction, state of facts or other condition which occurred or existed on or before the Seller’s Estoppel Certificate. If Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior occurs and subject to the Closing Dateterms, and/or (C) conditions and limitations set forth herein, Purchaser shall indemnify, defend and hold the Seller Indemnitees harmless for any environmental complaint and/or any demand of any government agency Loss incurred or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required suffered by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality them as a result of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of (B)(i) a breach of a representation or warranty by Purchaser in this Agreement (it being understood that representations and warranties that are made as of a specific date speak only as of that date), (B)(ii) any breach of any agreement, term, provision, condition, obligation, or covenant to be performed or satisfied by Purchaser pursuant to this Agreement, (B)(iii) any Assumed Liability and (B)(iv) the use, ownership and/or operation of Seller's business on the Property (or prior to any portion thereof) from and after Closing. For the Closing Date and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason purposes of determining whether a breach of any claims representation or warranty exists (pursuant to this Section 10.3(a) only) and the amount of or entitlements to severance payLosses associated with such breach, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent all qualifications based on any employment of materiality, such employee by Seller; and
(viii) any as “in all material respects”, “Material Adverse Effect”, and all actionssimilar qualifiers, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b)shall be disregarded.
Appears in 1 contract
Obligation to Indemnify. (a) Buyer On the terms and subject to the limitations set forth herein, Investor hereby assumes and agree agrees to save, indemnify indemnify, defend and hold harmless Seller the Company and its affiliates, members, managers, officers, employees and other agents and representatives (collectively the "Company Indemnified Parties") from and against, and shall on demand reimburse Seller the Company Indemnified Parties for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Seller the Company Indemnified Parties by reason of any misrepresentation or breach of warranty by Buyer Investor or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer Investor under this Agreement or in any agreement, certificate, document or instrument executed by Buyer Investor and delivered to Seller the Company pursuant to or in connection with this Agreement; and
(ii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a5.1(a).
(b) Seller On the terms and subject to the limitations set forth herein, the Company hereby assumes and agrees to save, indemnify and hold harmless Buyer Investor and its affiliates, directors, officers, employees and other agents and representatives (collectively, the "Investor Indemnified Parties") from, against and in respect of, and shall on demand reimburse Buyer Investor Indemnified Parties for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Buyer the Investor Indemnified Parties or by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller the Company (other than any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement arising solely from the act or omission of Investor) or any of its members (other than Investor) under this Agreement or any agreement, certificate, document or instrument executed by Seller any Company and delivered to Buyer Investor pursuant to or in connection with this Agreement;
(ii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by Seller; and
(viiiii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b5.1(b).
Appears in 1 contract
Samples: Membership Investment Agreement (Mediconsult Com Inc)
Obligation to Indemnify. (a) Subject to the terms hereof, Buyer hereby assumes and agree agrees to save, indemnify and hold harmless Seller from and Parent from, against, and in respect of, and shall on demand reimburse Seller for:
(i) any and Parent for all loss, liability, damage claim, damage, deficiency, injury and all costs and expenses (including all attorney fees and other defense costs) (collectively "Losses") suffered by Seller or deficiency suffered Parent or incurred by Seller by reason in respect of (i) any misrepresentation or breach of representation or warranty by Buyers in this Agreement, provided Buyer receives a Claim Notice (as hereinafter defined) within any survival period applicable thereto, or (ii) any nonfulfillment of any covenant or agreement to be performed or complied with by Buyer Buyers under this Agreement or in any agreement, certificate, document document, or instrument executed by Buyer any of Buyers and delivered to Seller pursuant to or in connection with this Agreement; and
Agreement (iiother than the JSA and LMA), or (iii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a)Buyer Liabilities.
(b) Subject to the terms hereof, Seller hereby assumes and agrees to save, indemnify indemnify, and hold harmless Buyer Buyers from, against and in respect of, and shall on demand reimburse Buyer for:
Buyers for all Losses suffered or incurred by Buyers in respect of (i) any and all loss, liability, damage misrepresentation or deficiency suffered or incurred by Buyer by reason of any misrepresentation, breach of representation or warranty by Seller in this Agreement provided Seller receives a Claim Notice (as hereinafter defined) within any survival period applicable thereto, or (ii) any nonfulfillment of any covenant or agreement to be performed or complied with by Seller or Parent under this Agreement or any agreement, certificate, document document, or instrument executed by Seller or Parent and delivered to Buyer any of Buyers pursuant to or in connection with this Agreement;
Agreement (ii) any other than the JSA and all lossthe LMA), liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement;
(iii) any and all loss, liability, damage, cost Excluded Liability; provided that no indemnification shall be available with respect to Losses or expense suffered or incurred Seller's breaches to the extent caused by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required affiliates in connection with any Hazardous Substance or hazardous discharge or their actions under the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by Seller; and
(viii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b)LMA.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gaylord Entertainment Co /De)
Obligation to Indemnify. In addition to specific indemnification provisions set forth elsewhere in this Agreement, each party (athe "Indemnitor") Buyer hereby assumes and agree to save, shall indemnify and hold harmless Seller the other party and its employees, officers and directors (each an "Indemnitee") from and againstagainst any and all liabilities, obligations, claims, damages, penalties, causes of action, costs and shall on demand reimburse Seller for:
expenses (including, without limitation, attorneys' fees and expenses) incurred by, imposed upon or asserted against the Indemnitee in connection with, arising out of, or resulting from (i) any and all loss, liability, damage or deficiency suffered or incurred by Seller by reason breach of any misrepresentation representation or breach of warranty made by Buyer or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer under the Indemnitor in this Agreement or in any agreement, certificate, document of the Ancillary Agreements; provided that the Indemnitee shall have given Indemnitor specific notice of the alleged breach during the survival period specified in Section 10.1; or instrument executed by Buyer and delivered to Seller pursuant to or in connection with this Agreement; and
(ii) any and all actionsfailure by the Indemnitor to perform any agreement, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any covenant or obligation of the foregoing, or reasonably incurred in investigating or attempting Indemnitor pursuant to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a).
(b) Seller hereby assumes and agrees to save, indemnify and hold harmless Buyer from, against and in respect of, and shall on demand reimburse Buyer for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Buyer by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller under this Agreement or any agreementof the Ancillary Agreements; provided that the Indemnitee shall have given Indemnitee notice of the alleged breach during the survival period specified in Section 10.
1. Furthermore, certificate, document or instrument executed by Seller and delivered to SPVC shall indemnify and hold Buyer pursuant to or in connection with this Agreement;
and its officers, directors and subsidiaries harmless from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (ii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
attorneys' fees and expenses) (vi) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on included among or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with the Excluded Liabilities, or (ii) incurred by, imposed upon or asserted against any Hazardous Substance such party resulting from any actual or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out potential claims of any noncompliance with third party, whether now known or hereafter arising, that any environmentalproduct, health or safety law, ordinance, rule or regulation as presently manufactured by Seller (each, an "Environmental Requirement"and as such products are manufactured by Buyer without modification), in each case, based on or arising from infringes any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required patent rights owned by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxessuch third party, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of including any claims of or entitlements relating to severance pay, termination pay and/or other benefits arising or accruing or claimed patents that may have been abandoned but continue to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by Seller; and
(viii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b)have revival rights.
Appears in 1 contract
Obligation to Indemnify. (a) Following the Closing, Buyer ----------------------- hereby assumes and agree agrees to save, indemnify and hold harmless Sellers, and the directors, officers and managers of each of Sellers (collectively with Sellers, the "Seller Indemnitees"), from and against, and shall on demand reimburse the Seller Indemnitees for:
(i) any loss, liability, damage, or deficiency suffered or incurred by any of the Seller Indemnitees by reason of or in connection with any of the Assumed Obligations, including any failure by Buyer to comply with the Obligations Undertaking;
(ii) any and all loss, liability, damage or deficiency suffered or incurred by any of the Seller Indemnitees by reason of any misrepresentation or breach of warranty by Buyer Buyers or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer Buyers under this Agreement or in any agreement, certificate, document or instrument executed by Buyer any of Buyers and delivered to Seller Sellers pursuant to or in connection with this Agreement; and;
(iiiii) any and all loss, liability, damage, or deficiency suffered or incurred by any of the Seller Indemnitees by reason of the operation by Buyer of the Stations after the Closing;
(iv) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a).
(b) Seller Following the Closing, the Sellers hereby assumes jointly and agrees severally, agree to save, indemnify and hold harmless Buyers, and the officers, managers and members of each of Buyers (collectively with Buyers, the "Buyer Indemnitees"), from, against and in respect of, and shall on demand reimburse the Buyer Indemnitees for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by any of the Buyer Indemnitees by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller any of the Sellers under this Agreement or any agreement, certificate, document or instrument executed by Seller any of the Sellers and delivered to Buyer any of Buyers pursuant to or in connection with this Agreement;
(ii) any loss, liability, damage or deficiency suffered or incurred by any of the Buyer Indemnitees by reason of or in connection with any of the Excluded Liabilities;
(iii) any and all loss, liability, damage, cost liability or expense damage suffered or incurred by any of the Buyer Indemnitees in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Sellerany of Sellers, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale or providing of air time, goods or services, state of facts or other condition which occurred or existed existed, or the content of any program, advertisement or transmission broadcasted or aired, on or before the Closing TBA Commencement Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof)Obligations Undertaking;
(iv) any and all loss, liability, damage, cost liability or expense damage suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller Buyer Indemnitees in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by SellerEmployee Benefit Plan; and
(viiiv) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Beasley Broadcast Group Inc)
Obligation to Indemnify. (a) Buyer hereby assumes Subject to Section 8.1(c), Sellers, jointly and severally, agree to saveindemnify, indemnify defend and hold harmless Seller Buyer, the Company, and their respective directors, officers, stockholders, employees, representatives, agents, Affiliates, successors and assigns (each a “Buyer Indemnified Party” and collectively, the “Buyer Indemnified Parties”) from and against, and shall on demand reimburse Seller for:will pay to the Buyer Indemnified Parties the amount of, all Losses resulting from or arising out of or in connection with the following (collectively, the “Buyer Indemnification Events”):
(i) any and all loss, liability, damage inaccuracy in or deficiency suffered or incurred by Seller by reason any breach of any misrepresentation representation or breach of warranty warranty, made by Buyer or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer under Sellers in this Agreement (including the Disclosure Schedules), the Transaction Documents or in any agreement, certificate, other certificate or document or instrument executed delivered by Buyer and delivered to Seller Sellers pursuant to or in connection with this Agreement; and
(ii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a).
(b) Seller hereby assumes and agrees to save, indemnify and hold harmless Buyer from, against and in respect of, and shall on demand reimburse Buyer for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Buyer by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller under this Agreement or any agreement, certificate, document or instrument executed by Seller and delivered to Buyer pursuant to or in connection with this Agreement;
(ii) any and all loss, liability, damage, cost failure to perform or expense suffered or incurred by Buyer in respect of or in connection comply with any and all debts, liabilities and obligations of, and covenant or obligation of Sellers contained in this Agreement or any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this AgreementTransaction Documents;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based matter described on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof)Exhibit E attached hereto;
(iv) any and all lossservices provided by, liabilityor any product shipped or manufactured by or on behalf of, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before Company prior to the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;; or
(v) any and all loss, liability, damage, cost claim by any Person for brokerage or expense suffered finder’s fees or incurred commissions or similar payments based upon any agreement or understanding alleged to have been made by Buyer based on any such Person with either of Sellers or arising from with the Company (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge Person acting on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (Btheir behalf) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement.
(b) Buyer agrees to indemnify, defend and hold harmless each of Sellers and their respective representatives, heirs, successors and assigns (each a “Seller Indemnified Party” and, collectively, the “Seller Indemnified Parties”) from and against, and will pay to the Seller Indemnified Parties the amount of, all Losses resulting from or arising out of or in connection with the following (collectively, the “Seller Indemnification Events”):
(i) any inaccuracy in or any breach of any representation or warranty made by Buyer in this Agreement, the Transaction Documents, or in any certificate delivered by Buyer pursuant to this Agreement
(ii) any failure to perform or comply with any covenant or obligation of Buyer contained in this Agreement or otherwise in any of the Transaction Documents;
(iii) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by such Person with Buyer (or any Person acting on its behalf) in connection with any of the transactions contemplated by the Agreement.
(c) Sellers’ aggregate liability (for indemnification or otherwise) with respect to Losses resulting from, arising out of, or relating to this Agreement shall be limited to $6,500,000. In addition, and notwithstanding anything to the contrary contained in this Agreement, Sellers will have no liability (for indemnification or otherwise) with respect to the matters described in Sections 8.1(a)(i) or (iv), or, to the extent based on relating to any employment failure to perform or comply prior to the Closing Date, Section 8.1(a)(ii) unless:
(i) the Losses with respect to the matter giving rise to a claim are greater than Ten Thousand Dollars ($10,000) to the extent such Losses arise or result from different causes of action (“Small Claims”), provided that the Buyer Indemnified Parties may make a claim for indemnification for different Small Claims which arise or result from the same cause of action, if such employee by Sellerrelated Losses together exceed One Hundred Thousand Dollars ($100,000) or at such time that the aggregate of all Small Claims, whether or not related, exceed One Hundred Thousand Dollars ($100,000), subject in all cases, to the other limitations of this Section 8.1(c); and
(viiiii) the total of all Losses with respect to such matters exceeds an amount equal to Four Hundred Thousand Dollars ($400,000) (the “Deductible”), and then only for the amount by which such Losses exceed such Deductible. In addition, the amount of any and all actionsLosses shall be reduced by any amount finally received by a Buyer Indemnified Party under any insurance coverage. Buyer Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage. Notwithstanding the foregoing, suits, proceedings, claims, demands, assessments, judgments, costs and expensesLosses may include any adverse effect to the Buyer Indemnified Party’s insurance policy to the extent the adverse effect is the result of paying the claim for Losses, including, without limitation, reasonable attorneys' fees, incident the cost of higher premiums or the cost of cancellation of such insurance policy and the increased cost for any replacement policy. The limitations of this Section 8.1(c) will not apply to any breach or inaccuracy of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of Sellers’ representations and warranties of which either Seller had Knowledge at any time prior to the obligations date on which such representation and warranty is made or any intentional failure by either Seller to perform any covenant or obligation required to be performed under this Section 9.1(b)Agreement or the Transaction Documents, and Sellers will be jointly and severally liable for all Losses with respect to such breaches, inaccuracies and failures to perform.
Appears in 1 contract
Obligation to Indemnify. (a) If the Closing shall occur, and subject to the terms and conditions of this Article 7, Buyer hereby assumes and agree agrees to save, indemnify and hold harmless Seller, and the respective officers, directors, members, managers, employees, agents, Affiliates and representatives of Seller, and the officers and directors of such members and managers (collectively, with Seller “Seller Indemnitees”) from and against, and shall on demand reimburse Seller for:
(i) any and all loss, liability, liability or damage or deficiency suffered or incurred by any Seller Indemnitee(s) by reason of any misrepresentation or breach of warranty by Buyer of any representation or warranty of Buyer set forth in this Agreement;
(ii) any loss, liability or damage suffered or incurred by any Seller Indemnitee(s) by reason of the nonfulfillment by Buyer of any covenant or agreement to be performed or complied with by Buyer under or pursuant to this Agreement or any of the Buyer Documents;
(iii) any loss, liability or damage suffered or incurred by any Seller Indemnitee(s) arising out of or related to any of the operations, business or activities of the Company or the Business after the Closing or any liability or obligation of the Company other than Excluded Liabilities, provided that such loss, liability or damage is not the result of a breach by Seller of any representation or warranty of Seller set forth in any agreement, certificate, document or instrument executed by Buyer and delivered to Seller pursuant to or in connection with this Agreement; and
(iiiv) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' ’ fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a7.1(a).
(b) If the Closing shall occur, and subject to the terms and conditions of this Article 7, Seller hereby assumes and agrees to save, indemnify and hold harmless Buyer, the Company and Buyer’s officers, directors and stockholders (collectively, with Buyer fromand the Company, against “Buyer Indemnitees”) from and in respect of, and shall on demand reimburse Buyer foragainst:
(i) any and all loss, liabilityliability or damage suffered or incurred by any Buyer Indemnitee(s) by reason of any breach by Seller of any representation or warranty of Seller set forth in this Agreement;
(ii) any loss, liability or damage or deficiency suffered or incurred by Buyer Indemnitee(s) by reason of any misrepresentation, breach of warranty or the nonfulfillment by Seller of any covenant or agreement to be performed or complied with by Seller under this Agreement or any agreement, certificate, document or instrument executed by Seller and delivered to Buyer pursuant to or in connection with this Agreement;
(ii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement;
(iii) any and all loss, liability, damage, cost or expense liability suffered or incurred by any Buyer based on or Indemnitee(s) arising out of the infringement or alleged infringement of claims by third parties against any of the Programs as they exist on the date hereof of the proprietary rights of Buyer Indemnitee(s) for any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);Excluded Liabilities; and
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by Seller; and
(viii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, including reasonable attorneys' ’ fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereofforegoing, or incurred in enforcing any of the obligations under this Section 9.1(b7.1(b).
Appears in 1 contract
Obligation to Indemnify. (a) From and after the Closing, and subject to the terms and conditions of this Article 7, Buyer hereby assumes and agree agrees to save, indemnify and hold harmless Seller and all officers, directors, employees, agents and members of Seller (collectively "Seller Indemnitees") from and against, and shall on demand reimburse Seller for:
(ii.) any and all loss, liability, liability or damage or deficiency suffered or incurred by any Seller Indemnitee by reason of any misrepresentation or breach of warranty by Buyer of any representation or warranty of Buyer set forth in this Agreement;
(ii.) any loss, liability or damage suffered or incurred by any Seller Indemnitee by reason of the nonfulfillment by Buyer of any covenant or agreement to be performed or complied with by Buyer under or pursuant to this Agreement Agreement;
(iii.) any loss, liability or in damage suffered or incurred by any agreement, certificate, document or instrument executed by Buyer and delivered to Seller pursuant Indemnitee with respect to or in connection with this Agreementany one or more of the Assumed Liabilities;
(iv.) any loss, liability or damage suffered or incurred by any Seller Indemnitee arising out of or related to the ownership or use of any of the Purchased Assets by Buyer and/or the operations, business or activities of Buyer after the Closing; and
(iiv.) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a)7.1.
(b) Seller From and after the Closing, and subject to the terms and conditions of this Article 7, each of the Selling Parties, jointly and severally, hereby assumes and agrees to save, indemnify and hold harmless Buyer fromand Buyer's officers, against directors, employees, agents and in respect of, stockholders (collectively "Buyer Indemnitees") from and shall on demand reimburse Buyer foragainst:
(ii.) any and all loss, liability, liability or damage or deficiency suffered or incurred by any Buyer Indemnitee by reason of any misrepresentationbreach by Seller of any representation or warranty of Seller set forth in this Agreement;
(ii.) any loss, breach liability or damage suffered or incurred by any Buyer Indemnitee by reason of warranty or the nonfulfillment by Seller of any covenant or agreement to be performed or complied with by Seller under this Agreement or any agreement, certificate, document or instrument executed by Seller and delivered to Buyer pursuant to or in connection with this Agreement;
(ii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement;
(iii.) any and all loss, liability, damage, cost liability or expense damage suffered or incurred by any Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue Indemnitee with respect to any employee of Seller, whether by reason of or in connection with any one or more of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by Seller; and
(viii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b).Excluded Liabilities;
Appears in 1 contract
Samples: Asset Purchase Agreement (Document Security Systems Inc)
Obligation to Indemnify. (a) If the Closing shall occur, Buyer hereby assumes shall assume and agree agrees to save, indemnify and hold harmless Seller from and against, and shall on demand reimburse Seller for:
(i) any failure by Buyer to comply with the Liabilities Undertaking;
(ii) any and all actual loss, liability, damage or deficiency suffered or incurred by Seller by reason of any material misrepresentation or material breach of warranty by Buyer or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer under this Agreement or in any agreement, certificate, document or instrument (other than any Assigned Lease) executed by Buyer and delivered to Seller pursuant to or in connection with this Agreement; and
(iiiii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a).
(b) The Seller hereby assumes and agrees to save, indemnify and hold harmless Buyer from, against and in respect of, and shall on demand reimburse Buyer for:
(i) any and all actual loss, liability, damage or deficiency suffered or incurred by Buyer by reason of any material misrepresentation, material breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller under this Agreement or any agreement, certificate, document or instrument (other than any Assigned Lease) executed by Seller and delivered to Buyer pursuant to or in connection with this Agreement;
(ii) any and all actual loss, liability, damage, cost liability or expense damage suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by by, Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale or providing of time, goods or services, state of facts or other condition which occurred or existed existed, or the content of any program, advertisement or transmission broadcasted or aired, on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under pursuant to the terms of this AgreementLiabilities Undertaking;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all actual loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller of the Real Properties or any hazardous discharge Hazardous Discharge thereon or on or prior to the Closing Date, and/or any environmental complaintEnvironmental Complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge Hazardous Discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition involving the Business or any of the Real Properties, which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous dischargeHazardous Discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, involving the Business or any of the Real Properties, and/or (C) any environmental complaint Environmental Complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous dischargeHazardous Discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, involving the Business or any of the Real Properties, and including, without limitation and in each such case under this clause (viii), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(viiv) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding franchise and social security taxes, similar taxes and all assessments or similar governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, assessments which are due or payable by Seller in connection with Seller, or arising out of the operation of Seller's business or the Station on or prior to the Closing Date Date, and all interest and penalties thereon;
(viiv) any and all actual loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of noncompliance with the provisions of any claims bulk transfer law of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or jurisdiction in connection with any of the transactions contemplated by this Agreement or otherwise Agreement, except to the extent based on any employment of such employee liabilities specifically assumed by SellerBuyer pursuant to the Liabilities Undertaking; and
(viiivi) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Regent Communications Inc)
Obligation to Indemnify. (a) Buyer hereby assumes and agree Seller agrees to save, indemnify and hold harmless Seller from Buyer, its Affiliates (including, following the Closing, the Company) and againsttheir respective directors, officers, shareholders, partners, members and shall on demand reimburse Seller for:
employees and their heirs, successors and permitted assigns (icollectively, “Buyer Indemnified Parties”) any and all loss, liability, damage or deficiency suffered or incurred by Seller by reason of any misrepresentation or breach of warranty by Buyer or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer under this Agreement or in any agreement, certificate, document or instrument executed by Buyer and delivered to Seller pursuant to or in connection with this Agreement; and
(ii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a).
(b) Seller hereby assumes and agrees to save, indemnify and hold harmless Buyer from, against and in respect ofof any damages, losses, charges, Liabilities, payments, judgments, settlements, assessments, deficiencies, Taxes, interest, penalties, and shall on demand reimburse Buyer for:
reasonable costs and expenses (i) any and all loss, liability, damage or deficiency suffered or incurred by Buyer by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller under this Agreement or any agreement, certificate, document or instrument executed by Seller and delivered to Buyer pursuant to or in connection with this Agreement;
(ii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufacturedreasonable attorneys’ fees, assembledand reasonable out of pocket disbursements) (“Losses”) imposed on, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all losssustained, liability, damage, cost or expense suffered or incurred or suffered by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxesBuyer Indemnified Parties, includingwhether in respect of Third Party Claims, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by claims between the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign countryParties, or by any other taxing authorityotherwise, which are due directly or payable by Seller indirectly resulting from, in connection with or arising out of (i) the operation inaccuracy or any breach of the representations and warranties of Seller contained in this Agreement or in any other agreement, certificate or document delivered by or on behalf of Seller at the Closing; it being understood that for purposes of this Section 8.1(a)(i), any qualifications relating to materiality, including the term “Material Adverse Change”, contained in any such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate; (ii) any breach or failure by Seller to perform any of its covenants or obligations contained in this Agreement or in any other certificate or document delivered by or on behalf of Seller at the Closing; (iii) Indemnified Taxes; (iv) claims against, or actions by, the Company, Seller, or any of Seller's business ’s Affiliates (or their respective employees, directors, or officers) occurring, or based on or facts and circumstances occurring, prior to the Effective Time or the Closing Date (whichever is later), and in each case that arise out of or relate to the operations of the Company prior to the Effective Time or the Closing Date (whichever is later); and/or (v) the Administrative Services Agreement, the LPT Agreement, the Guaranty Agreement or any other agreement delivered by or on behalf of Seller at the Closing. Notwithstanding the foregoing, Buyer Indemnified Parties shall be entitled to indemnification under Section 8.1(a)(i) only to the extent that the aggregate amount of such Losses exceed on a cumulative basis one hundred thousand dollars ($100,000) (the “Seller Rep and Warranty Basket”), at which point the Seller will be obligated to indemnify the Buyer Indemnified Parties from and against all interest such Losses in excess of the Seller Rep and penalties thereon;Warranty Basket.
(viib) Buyer agrees to indemnify and hold harmless Seller, its Affiliates (excluding, following the Closing, the Company), and their respective directors, officers, shareholders, partners, members and employees and their heirs, successors and permitted assigns (collectively, “Seller Indemnified Parties”) from, against and in respect of any and all lossLosses imposed on, liabilitysustained, damage, cost or expense suffered or incurred or suffered by Buyer by reason any of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Sellerthe Seller Indemnified Parties, whether by reason in respect of Third Party Claims, claims between the Parties, or otherwise, directly or indirectly resulting from, in connection with or arising out of (i) the inaccuracy or any breach of the transactions contemplated by representations and warranties of Buyer contained in this Agreement or otherwise in any other agreement, certificate or document delivered by or on behalf of Buyer at the Closing; (ii) any breach or failure by Buyer to perform any of its covenants or obligations contained in this Agreement or in any other agreement, certificate or document delivered by or on behalf of Seller at the Closing; and/or (iii) claims against, or actions by, the Company, Buyer, or any of Buyer’s Affiliates (or their respective employees, directors, or officers) occurring, or based on facts and circumstances occurring, after the Effective Time or the Closing Date (whichever is later), and in each case that arise out of or relate to the extent based on any employment of such employee by Seller; and
(viii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any operations of the foregoing Company after the Effective Time or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any Closing Date (whichever is later) (excluding actions taken by Property and Casualty Company of Omaha on behalf of the obligations Company under this Section 9.1(bthe Administrative Services Agreement and/or the LPT Agreement).
Appears in 1 contract
Samples: Stock Purchase Agreement
Obligation to Indemnify. (a) Buyer hereby assumes Subject to the expiration of representations, warranties, covenants, undertakings and agree agreements of the parties as provided in Article X, UICI agrees to saveindemnify, indemnify defend and hold harmless Seller Buyer, HCS and their respective directors, officers, employees, Affiliates and assigns from and against all claims, losses, liabilities, damages, deficiencies, costs or expenses, penalties and reasonable outside attorneys' fees and disbursements (collectively, "Losses," and individually a "Loss"), asserted against, and shall on demand reimburse Seller for:
(i) any and all loss, liability, damage or deficiency suffered imposed upon or incurred by Seller Buyer, HCS and their respective directors, officers, employees, Affiliates and assigns, directly or indirectly, by reason of any misrepresentation or breach of warranty by Buyer or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer under this Agreement or in any agreement, certificate, document or instrument executed by Buyer and delivered to Seller pursuant to or in connection with this Agreement; and
(ii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a).
(b) Seller hereby assumes and agrees to save, indemnify and hold harmless Buyer from, against and in respect of, and shall on demand reimburse Buyer for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Buyer by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller under this Agreement or any agreement, certificate, document or instrument executed by Seller and delivered to Buyer pursuant to or in connection with this Agreement;
(ii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer in respect arising out of or in connection with (i) any and all debts, liabilities and obligations of, and misrepresentations or breach of any and all violation representation or warranty or the failure to perform any pre-Closing covenant or undertaking of laws, rules, regulations, codes or orders by any of Seller, direct SCS, RFC and UICI in this Agreement or indirectany Related Agreement or any schedule, fixedexhibit, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts instrument or other condition which occurred document delivered or existed on executed by any such party hereunder or before thereunder, (ii) the failure to perform any post-Closing Datecovenant, whether undertaking or not then knownagreement of any of Seller, due SCS, RFC and UICI in this Agreement or payableany Related Agreement or any schedule, except to the extent specifically assumed exhibit, instrument or other document delivered or executed by Buyer under the terms of this Agreement;
any such party hereunder or thereunder, or (iii) any and all lossalleged, liabilitycontingent or absolute debt, damageclaim, cost obligation or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict other liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
Losses (vx) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior relating to the Closing DateExcluded Obligations and, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs extent arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon;
(vii) except for Assumed Obligations, any and all lossalleged, contingent or absolute debt, claim, obligation or other liability, damageor any other losses relating to the UCS Business, the Transferred Assets, the Transferred Contracts or the Transferred Accounts and (y) arising (including any incremental cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by Seller; and
(viii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereofcourt ordered, or in enforcing any as otherwise mutually agreed between the parties, mass reissuance of the obligations under this Section 9.1(b).credit cards) on or after the
Appears in 1 contract
Obligation to Indemnify. (a) Following the Closing, Buyer hereby assumes and agree agrees to save, indemnify and hold harmless Seller Shareholder from and against, and shall on demand reimburse Seller Shareholder for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Seller Shareholder by reason of any misrepresentation or breach of warranty by Buyer or nonfulfillment of any covenant or agreement to be performed or complied with by Subsidiary or Buyer under this Agreement or in any agreement, certificate, document or instrument executed by Subsidiary or Buyer and delivered to Seller the Selling Parties pursuant to or in connection with this Agreement; and
(ii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including including, without limitation, reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a8.1(a).
(b) Seller hereby assumes Company (but only in the event the Closing shall not occur under this Agreement) and Shareholder (jointly and severally with Company if the Closing shall not occur or individually if the Closing shall occur) agrees to save, indemnify and hold harmless Subsidiary, Company and Buyer from, against and in respect of, and shall on demand reimburse Subsidiary, Company and Buyer for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by any of any of Subsidiary, Company and/or Buyer by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller any of the Selling Parties under this Agreement or any agreement, certificate, document or instrument executed by Seller any of the Selling Parties and delivered to Subsidiary or Buyer pursuant to or in connection with this Agreement;
(ii) any and all loss, liability, damage, cost liability or expense damage suffered or incurred by any of Subsidiary, Company and/or Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation violations of laws, rules, regulations, codes or orders by Sellerby, Company, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to for those liabilities specifically included in the extent specifically assumed by Buyer under the terms of this AgreementClosing Working Capital;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller Company or its predecessors in interest at any time;
(viv) any and all loss, liability, damage, cost or expense suffered or incurred by any of Subsidiary, Company and/or Buyer based on or arising from (A) the presence of any Hazardous Substance on the Facility or about any premises occupied by Seller the Former Properties or any hazardous discharge Hazardous Discharge on or prior to the Closing DateDate by, on or from or involving Company or the Facility or the Former Properties, and/or any environmental complaintEnvironmental Complaint against Company or the Facility or the Former Properties, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge Hazardous Discharge on or from or involving Company or the Facility or the Former Properties, or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing DateDate at or on the Facility or the Former Properties, whether or not then known, or (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous dischargesuch Hazardous Discharge, the any such presence, use, disposal or treatment of a Hazardous Substance, or any such noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint Environmental Complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date Date, which is based upon or in any way related to any hazardous dischargeHazardous Discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, on or from, by or involving Company or the Facility or the Former Properties, and including, without limitation and in each such case under this clause (viii), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(viv) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, Taxes which are due or payable by Seller in connection with Company, or arising arise out of the operation of SellerCompany's business on or prior to the Closing Date and all interest and penalties thereonDate, except for the amount of Taxes which are specifically reflected in the Closing Working Capital;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by Seller; and
(viiivi) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b8.1(b).
(c) Without limiting any party's rights under this Article 8, if any legal action or court or arbitration proceeding (or threat thereof) shall be commenced (or threatened) by a third party against a party (an "Indemnitee") entitled to indemnification in respect thereof under this Article 8 (a "Covered Proceeding"), the Indemnitee shall give the indemnifying party prompt written notice of such Covered Proceeding and copies of all pleadings filed relating thereto within ten (10) days after the Indemnitee's receipt thereof. The Indemnitee also agrees to provide the Indemnitor five (5) days prior notice of the payment or settlement by Indemnitee of any indemnifiable claim. Notwithstanding the foregoing, failure by an Indemnitee to provide an indemnifying party any such notice shall not affect indemnifying party's obligations under Article 8 hereof.
Appears in 1 contract
Obligation to Indemnify. (a) Buyer hereby assumes and agree to save, indemnify and hold harmless Seller from and against, and shall on demand reimburse Seller for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Seller by reason of any misrepresentation or breach of warranty by Buyer or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer under this Agreement or in any agreement, certificate, document or instrument executed by Buyer and delivered to Seller pursuant to or in connection with this Agreement; and
(ii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a).
(b) Seller and Principals hereby assumes jointly and agrees severally assume and agree to save, indemnify and hold harmless Buyer from, against and in respect of, and shall on demand reimburse Buyer for:
(i) any and all loss, liability, damage or deficiency suffered or incurred by Buyer by reason of any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement to be performed or complied with by Seller under this Agreement or any agreement, certificate, document or instrument executed by Seller and delivered to Buyer pursuant to or in connection with this Agreement;
(ii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years arising out of the date hereof)Business or the Purchased Assets;
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date of this transaction and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by Seller; and
(viii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b).
Appears in 1 contract
Samples: Purchase and Sale Agreement (New Paradigm Software Corp)
Obligation to Indemnify. (a) Following the Closing, and subject to the limitations set forth in this Article 11, Buyer hereby assumes and agree agrees to save, indemnify and hold harmless Seller Sellers from and against, and shall on demand reimburse Seller for:
(i) any and Sellers for all loss, liability, damage or deficiency claim, damage, deficiency, injury and all costs and expenses (including all attorney fees and other defense costs) (collectively “Losses”) suffered by Sellers or incurred in respect of any failure by Seller by reason of Buyer to comply with the Assignment and Assumption Agreements; or any misrepresentation or breach of warranty by Buyer Buyers or nonfulfillment of any covenant or agreement to be performed or complied with by Buyer Buyers under this Agreement or in any agreement, certificate, document or instrument Closing Documents executed by Buyer any of Buyers and delivered to Seller Sellers pursuant to or in connection with this Agreement; and
(ii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incident to any of the foregoing, or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(a).
(b) Following the Closing, and subject to the limitations set forth in this Article 11, Seller hereby assumes and agrees to save, indemnify indemnify, and hold harmless Buyer Buyers from, against and in respect of, and shall on demand reimburse Buyer for:
(i) any and Buyers for all loss, liability, damage or deficiency Losses suffered or incurred by Buyer by reason Buyers in respect of any misrepresentation, breach of warranty warranty, or nonfulfillment of any covenant or agreement to be performed or complied with by Seller Sellers under this Agreement or any agreement, certificate, document or instrument Closing Documents executed by Seller Sellers and delivered to Buyer any of Buyers pursuant to or in connection with this Agreement;
(ii) any Agreement and all loss, liability, damage, cost or expense suffered or incurred by Buyer in respect of or in connection with any and all debts, liabilities and obligations of, and any and all violation of laws, rules, regulations, codes or orders by Seller, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, due or payable, except to the extent specifically assumed by Buyer under the terms of this Agreement;
(iii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of the infringement or alleged infringement of any of the Programs as they exist on the date hereof of the proprietary rights of any third party (provided that any such claim pursuant to this subparagraph (iii) is made within three years of the date hereof);
(iv) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising out of any defective or allegedly defective product or service warranty and/or third party liability claims (whether alleged in contract, tort, strict liability or otherwise), which exist at or as of the Closing Date or which arise after the Closing Date but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the Closing Date, including, without limitation, any products manufactured, assembled, sold or distributed by Seller or its predecessors in interest at any time;
(v) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer based on or arising from (A) the presence of any Hazardous Substance on or about any premises occupied by Seller or any hazardous discharge on or prior to the Closing Date, and/or any environmental complaint, and/or the failure to obtain any license or permit required in connection with any Hazardous Substance or hazardous discharge or the retention, disposal, treatment or use thereof, and/or arising out of any noncompliance with any environmental, health or safety law, ordinance, rule or regulation (each, an "Environmental Requirement"), in each case, based on or arising from any act, transaction, state of facts or other condition which occurred or existed on or before the Closing Date, whether or not then known, (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, or noncompliance with any Environmental Requirement, on or prior to the Closing Date, and/or (C) any environmental complaint and/or any demand of any government agency or authority prior to, on or after the Closing Date which is based upon or in any way related to any hazardous discharge, the presence, use, disposal or treatment of a Hazardous Substance, and/or noncompliance with any Environmental Requirement on or prior to the Closing Date, and including, without limitation and in each such case under this clause (v), the reasonable costs and expenses of all remedial action and clean-up, attorney and consultant fees, investigation, sampling and laboratory fees, court costs and litigation expense and costs arising out of emergency or temporary assistance or action undertaken by or as required by any duly authorized regulatory body in connection with any of the foregoing;
(vi) any and all taxes, including, without limitation, income, franchise, property, sales, use, added value, employees' income withholding and social security taxes, and all assessments or governmental charges imposed by the United States or by any foreign country or by any state, municipality, subdivision or instrumentality of the United States or of any foreign country, or by any other taxing authority, which are due or payable by Seller in connection with or arising out of the operation of Seller's business on or prior to the Closing Date and all interest and penalties thereon;
(vii) any and all loss, liability, damage, cost or expense suffered or incurred by Buyer by reason of any claims of or entitlements to severance pay, termination pay and/or other benefits arising or accruing or claimed to arise or accrue with respect to any employee of Seller, whether by reason of or in connection with any of the transactions contemplated by this Agreement or otherwise to the extent based on any employment of such employee by Seller; and
(viii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys' fees, incident to any of the foregoing or reasonably incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing any of the obligations under this Section 9.1(b)Excluded Liabilities.
Appears in 1 contract
