Common use of Result of Breach of Representation or Warranty; Indemnification Clause in Contracts

Result of Breach of Representation or Warranty; Indemnification. (a) Subject to the other provisions of this Article VII, Seller shall indemnify, defend and hold harmless Buyer, and its members, partners, shareholders, managers, directors, officers, Employees, agents, representatives, successors and permitted assigns (the “Buyer Indemnitees”) from and against any and all Liabilities, claims, Taxes, losses, damages, actions, judgments, interest, award, penalties, fines, costs and expenses (including reasonable costs of investigation and defense and the cost of pursuing any insurance providers and all reasonable attorneys’ fees and disbursements), whether before, on or after the Closing Date (collectively, “Losses”), of the Buyer Indemnitees to the extent resulting from or arising out of: (i) the breach of any representation or warranty of Seller set forth in Article III or Article IV; (ii) the breach of any covenant of Seller contained in this Agreement; (iii) any Transaction Expenses of the Company or the Seller outstanding as of immediately following the Closing to the extent not deducted in the determination of the Purchase Price; (iv) any damages or Liabilities imposed on or with respect to, or incurred by or with respect to, the Buyer Indemnitees, the Company and/or any of the Company Funds, arising out of or relating to the SEC examination of Fifth Street Management LLC and its Affiliates (including the Company) that commenced on or about October 6, 2015, including any enforcement examinations or actions relating thereto or resulting therefrom, which, for the avoidance of doubt, shall not include any damages or Liabilities related to operation of the Business after the Closing Date; or (v) Liabilities (including for any indemnification obligations, Proceedings or Taxes) imposed on or with respect to, or incurred by or with respect to, any of the Company Funds or the Company with respect to any period ending on or before the Closing Date (or, for any period beginning on or before and ending after the Closing Date, all such Liabilities and obligations to the extent allocable to the portion of such period beginning on or before and ending on the Closing Date). With respect to Taxes, the amount of any Taxes based on or measured by income, receipts or payroll of the Company for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date, and the amount of other Taxes of the Company for a Straddle Period that relates to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period. (vi) Any damages or Liabilities imposed on or with respect to, or incurred by or with respect to, the Buyer Indemnitees, the Company and/or any of the Company Funds, arising out of or relating to any failure to comply with the Retention Undertaking during any period ending on or before the Closing Date. (b) Subject to the other provisions of this Article VII, Buyer shall indemnify, defend and hold harmless Seller and its respective Affiliates, agents, representatives, successors and permitted assigns (the “Seller Indemnitees”) from and against any and all Losses to the extent resulting from or arising out of any of: (i) the breach, or any claim by a party other than Seller or the Company that if true would constitute a breach, of any representation or warranty of Buyer set forth in this Agreement, or (ii) the breach of any covenant of Buyer contained in this Agreement.

Result of Breach of Representation or Warranty; Indemnification. (a) Subject to the other provisions of this Article VIIVIII, Seller from and after the Closing, CCOC shall indemnify, defend and hold harmless Buyer, and its members, partners, shareholders, managers, directors, officers, Employees, agents, representatives, successors and permitted assigns (the “each Buyer Indemnitees”) from and against Indemnitee for any and all Liabilities, claims, Taxes, losses, damages, actions, judgments, interest, award, penalties, fines, costs and expenses (including reasonable costs of investigation and defense and the cost of pursuing any insurance providers and all reasonable attorneys’ fees and disbursements), whether before, on Losses incurred or after the Closing Date (collectively, “Losses”), of suffered by the Buyer Indemnitees to the extent resulting from or arising out of: (i) the breach of any representation or warranty of Seller set forth contained in Article III IV or Article IVV of this Agreement (which breach and any related Losses shall be determined without giving effect to any materiality, “Digital Colony Material Adverse Effect” or similar qualifier (other than the fourth and fifth uses of the term “material” in Section 5.15(c), each use of the term “material” in the definitions of “Digital Colony Business”, “Digital Colony Personnel”, “Digital Infrastructure” and “Material Contract” and the use of the term “Material Contract” itself)); (ii) the breach of any covenant or agreement of Seller CCOC or Colony Capital contained in this Agreement; (iii) any Transaction Expenses (A) the Excluded Assets and (B) the Digital Bridge Acquisition Agreement; provided, that in the case of the Company or the Seller outstanding as of immediately following the Closing this clause (B), to the extent not deducted in respect of employment agreements and agreements related to Carried Interest such indemnification LA_LAN01:362972.20 obligation shall be limited to Losses arising out of, relating to or in connection with the determination of period prior to the Purchase Pricedate hereof; (iv) any damages liabilities or Liabilities imposed on or with respect to, or incurred by or with respect to, the Buyer Indemnitees, the Company and/or any of the Company Funds, arising out of or relating to the SEC examination of Fifth Street Management LLC and its Affiliates obligations (including the Companyx) that commenced on or about October 6, 2015, including any enforcement examinations or actions relating thereto or resulting therefrom, which, for the avoidance of doubt, shall not include any damages or Liabilities related to operation of the Business after the Closing Date; or (v) Liabilities (including for any indemnification obligations, Proceedings or TaxesTaxes imposed (regardless of when imposed) imposed on or with respect to, or incurred by or with respect to, any of Digital Colony Company or any Digital Colony Fund (including any Taxes or other amounts imposed under the Company Funds or the Company with respect Partnership Audit Rules), in each case, that is attributable to any taxable period beginning on or before and ending on or before the Closing Date (or, for any period beginning on or before and ending after the Closing Date, all such Liabilities liabilities and obligations for Taxes to the extent allocable to the portion of such period beginning on or before and ending on the Closing Date). With , (y) for any Taxes of a Person (other than a Digital Colony Company) for which any Digital Colony Company becomes liable (A) as a result of such Digital Colony Company being a member of an affiliated, consolidated, combined, unitary or similar group for Tax purposes prior to the Closing, or (B) as a result of transferor or successor liability, as a result of the operation of Law or by Contract or assumption or otherwise, in each case as a result of a transaction or event occurring prior to the Closing, or (z) for the payment of any amounts as a result of any Digital Colony Company or Digital Colony Fund entering into or being a party to any Tax Sharing Agreement prior to the Closing or as a result of any express or implied obligation to indemnify any other Person with respect to Taxesthe payment of any amounts described in this clause (iv) of this Section 8.2(a), whether disputed or not; or (v) any Proceeding initiated or maintained by or on behalf of an equity holder of Colony Capital in connection with or related to entering into the Contemplated Transactions except to the extent such Proceeding is based on facts, circumstances or events arising from the actual fraud of the Buyer Indemnitees. The foregoing exception shall not apply to, and indemnification shall be available for, any Proceeding against any Buyer Indemnitee to the extent such Proceeding is based on a theory that such Buyer Indemnitee aided and abetted or conspired with Colony Capital or any of its Affiliates, or is jointly, derivatively or secondarily liable with any Colony Capital or any of its Affiliates. In calculating the amount of any Taxes based on or measured Losses suffered by income, receipts or payroll the Buyer Indemnitees for purposes of the Company for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing DateSection 8.2(a), and subject to the other limitations set forth in this Article VIII, such Losses will take into account the Buyer’s interest in DCMH (including for determining the amount of other Taxes Losses suffered by Buyer as a result of the Company for a Straddle Period that relates adverse consequences to CCOC or Colony Capital in connection with any applicable breach and in respect of any indemnification payments to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied Buyer Indemnitees made by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period. (vi) Any damages or Liabilities imposed on or with respect to, or incurred by or with respect to, the Buyer Indemnitees, the Company and/or any of the Company Funds, arising out of or relating to any failure to comply with the Retention Undertaking during any period ending on or before the Closing DateCCOC). (b) Subject to the other provisions of this Article VIIVIII, Buyer shall indemnify, defend and hold harmless Seller each of CCOC and its Colony Capital and their respective AffiliatesAffiliates and each of their respective directors, officers, employees, stockholders, members, partners, agents, representatives, successors and permitted assigns (the “Seller Digital Colony Indemnitees”) from and against any and all Losses incurred or suffered by the Digital Colony Indemnitees to the extent resulting arising from or arising out of any of: (ic) the breach, or any claim by a party other than Seller or the Company that if true would constitute a breach, breach of any representation or warranty contained in Article VI of Buyer set forth in this Agreement, or Agreement (iiwhich breach and any related Losses shall be LA_LAN01:362972.20 determined without giving effect to any materiality or similar qualifier) or (d) the breach of any covenant or agreement of Buyer contained in this Agreement.

Result of Breach of Representation or Warranty; Indemnification. (a) Subject to the other provisions of this Article VIIVIII, Seller from and after the Closing, Summit shall indemnify, defend and hold harmless Buyer, Buyers and its members, partners, shareholders, managers, their respective Affiliates and each of their respective directors, officers, Employeesemployees, stockholders, members, partners, agents, representatives, successors and permitted assigns (the “Buyer Indemnitees”) ), without duplication, from and against any and all Liabilities, claims, Taxes, losses, damages, actions, judgments, interest, award, penalties, fines, costs and expenses (including reasonable costs of investigation and defense and the cost of pursuing any insurance providers and all reasonable attorneys’ fees and disbursements), whether before, on or after the Closing Date (collectively, “Losses”), of the Losses actually suffered by a Buyer Indemnitees Indemnitee to the extent resulting from or arising out of: of (i) the breach of any representation or warranty of Seller the Partnership and the GP set forth in Article III of this Agreement (without giving any effect, both for purposes of determining whether a breach has occurred and for purposes of calculating any Losses resulting therefrom, to any qualification as to “materiality” or Article IV; “Partnership Material Adverse Effect” or any similar qualification), (ii) the breach of any representation or warranty of Summit set forth in Article IV of this Agreement (without giving any effect, both for purposes of determining whether a breach has occurred and for purposes of calculating any Losses resulting therefrom, to any qualification as to “materiality” or “Partnership Material Adverse Effect” or any similar qualification), (iii) the breach of any covenant or agreement of Seller the Partnership or the GP contained in this Agreement; (iii) any Transaction Expenses of the Company or the Seller outstanding as of immediately following the Closing to the extent not deducted in the determination of the Purchase Price; , (iv) the breach of any damages covenant or Liabilities imposed on or with respect toagreement of Summit contained in this Agreement, or (v) liabilities and obligations for any Taxes incurred by or with respect to, the Buyer Indemnitees, the Company and/or any of the Company Funds, arising out of or relating to the SEC examination of Fifth Street Management LLC and its Affiliates (including the Company) that commenced on or about October 6, 2015, including any enforcement examinations or actions relating thereto or resulting therefrom, which, for the avoidance of doubt, shall not include any damages or Liabilities related to operation of the Business after the Closing Date; or (v) Liabilities (including for any indemnification obligations, Proceedings or Taxes) imposed on or with respect to, or incurred by or with respect to, any of the Company Funds or the Company Group Entities with respect to any period ending on or before the Closing Date (or, for any period beginning on or before and ending after the Closing Date, all such Liabilities liabilities and obligations for Taxes to the extent allocable to the portion of such period beginning on or before and ending on the Closing DateDate in accordance with Section 6.7(a). With respect to Taxes, the amount of any Taxes based on or measured by income, receipts or payroll of the Company for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date), and the amount of other Taxes of the Company for a Straddle Period that relates to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period. (vi) Any damages the breach of any representation, warranty, covenant or Liabilities imposed on or with respect to, or incurred agreement of Summit contained in the NBB Agreement. The amount recoverable by or with respect to, the Buyer Indemnitees, the Company and/or any Indemnitees pursuant to this Section 8.2(a) shall be allocated in respect of the Company FundsPurchased Interests that are Class A Interests or the Purchased Interests that are Class B Interests, arising out of as applicable, to the extent any indemnification obligation is attributable to the U.S. Business or relating to any failure to comply with the Retention Undertaking during any period ending on or before the Closing DateNon-U.S. Business. (b) Subject to the other provisions of this Article VIIVIII, Buyer from and after the Closing, Fly shall indemnify, defend and hold harmless the Buyer Indemnitees, without duplication, from and against any and all Losses actually suffered by a Buyer Indemnitee to the extent resulting from or arising out of the breach of any representation or warranty of Fly set forth in Article IV of this Agreement (without giving any effect, both for purposes of determining whether a breach has occurred and for purposes of calculating any Losses resulting therefrom, to any qualification as to “materiality” or “Partnership Material Adverse Effect” or any similar qualification). The amount recoverable by the Buyer Indemnitees pursuant to this Section 8.2(b) shall be allocated in respect of the Purchased Interests that are Class A Interests or the Purchased Interests that are Class B Interests, as applicable, to the extent any indemnification obligation is attributable to the U.S. Business or the Non-U.S. Business. (c) Subject to the other provisions of this Article VIII, from and after the Closing, the Buyers shall, jointly and severally, indemnify, defend and hold harmless the Partnership, the GP, each Seller and its their respective Affiliates, directors, officers, employees, stockholders, members, partners, agents, representatives, successors and permitted assigns (the “Seller Indemnitees”) ), without duplication, from and against any and all Losses actually suffered by a Seller Indemnitee to the extent resulting from or arising out of any of: of (i) the breach, or any claim by a party other than Seller or the Company that if true would constitute a breach, breach of any representation or warranty of such Buyer set forth in Article V of this AgreementAgreement (without giving any effect, or both for purposes of determining whether a breach has occurred and for purposes of calculating any Losses resulting therefrom, to any qualification as to “materiality” or “Buyer Material Adverse Effect” or any similar qualification) or (ii) the breach of any covenant or agreement of any Buyer contained in this Agreement.

Result of Breach of Representation or Warranty; Indemnification. (a) Subject to the other provisions of this Article VIIVI, Seller from and after the Closing, CCOC shall indemnify, defend and hold harmless Buyer, and its members, partners, shareholders, managers, directors, officers, Employees, agents, representatives, successors and permitted assigns (the “each Buyer Indemnitees”) from and against Indemnitee for any and all Liabilities, claims, Taxes, losses, damages, actions, judgments, interest, award, penalties, fines, costs and expenses (including reasonable costs of investigation and defense and the cost of pursuing any insurance providers and all reasonable attorneys’ fees and disbursements), whether before, on Losses incurred or after the Closing Date (collectively, “Losses”), of suffered by the Buyer Indemnitees to the extent resulting from or arising out of: (i) the breach of any representation or warranty of Seller set forth contained in Article III of this Agreement (which breach and any related Losses shall be determined without giving effect to any materiality, “Digital Colony Material Adverse Effect” or Article IV;similar qualifier); and (ii) the breach of any covenant or agreement of Seller CCOC or Colony Capital contained in this Agreement; (iii) any Transaction Expenses . In calculating the amount of Losses suffered by the Company or the Seller outstanding as Buyer Indemnitees for purposes of immediately following the Closing Section 6.2(a)(ii), and subject to the extent not deducted other limitations set forth in this Article VI, such Losses will take into account the determination of the Purchase Price; (iv) any damages or Liabilities imposed on or Buyer’s interest with respect to, or incurred by or with respect to, the Buyer Indemnitees, the Company and/or any of the Company Funds, arising out of or relating to the SEC examination of Fifth Street Management LLC and its Affiliates NewCo (including the CompanyCarry) that commenced on or about October 6, 2015, including any enforcement examinations or actions relating thereto or resulting therefrom, which, for the avoidance of doubt, shall not include any damages or Liabilities related to operation of the Business after the Closing Date; or (v) Liabilities (including for any indemnification obligations, Proceedings or Taxes) imposed on or with respect to, or incurred by or with respect to, any of the Company Funds or the Company with respect to any period ending on or before the Closing Date (or, for any period beginning on or before and ending after the Closing Date, all such Liabilities and obligations to the extent allocable to the portion of such period beginning on or before and ending on the Closing Date). With respect to Taxes, determining the amount of Losses suffered by Buyer as a result of adverse consequences to CCOC or Colony Capital in connection with any Taxes based on or measured by income, receipts or payroll applicable breach and in respect of the Company for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date, and the amount of other Taxes of the Company for a Straddle Period that relates any indemnification payments to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied Buyer Indemnitees made by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period. (vi) Any damages or Liabilities imposed on or with respect to, or incurred by or with respect to, the Buyer Indemnitees, the Company and/or any of the Company Funds, arising out of or relating to any failure to comply with the Retention Undertaking during any period ending on or before the Closing DateCCOC). (b) Subject to the other provisions of this Article VIIVI, Buyer shall indemnify, defend and hold harmless Seller each of CCOC and its Colony Capital and their respective AffiliatesAffiliates and each of their respective directors, officers, employees, stockholders, members, partners, agents, representatives, successors and permitted assigns (the “Seller Digital Colony Indemnitees”) from and against any and all Losses incurred or suffered by the Digital Colony Indemnitees to the extent resulting arising from or arising out of any of: (i) the breach, or any claim by a party other than Seller or the Company that if true would constitute a breach, breach of any representation or warranty contained in Article IV of Buyer set forth in this Agreement, or Agreement (which breach and any related Losses shall be determined without giving effect to any materiality or similar qualifier) or (ii) the breach of any covenant or agreement of Buyer contained in this Agreement.

Result of Breach of Representation or Warranty; Indemnification. (a) Subject to the other provisions of this Article VIIVIII, Seller from and after the Closing, Summit shall indemnify, defend and hold harmless Buyer, Buyers and its members, partners, shareholders, managers, their respective Affiliates and each of their respective directors, officers, Employeesemployees, stockholders, members, *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION *** partners, agents, representatives, successors and permitted assigns (the “Buyer Indemnitees”) ), without duplication, from and against any and all Liabilities, claims, Taxes, losses, damages, actions, judgments, interest, award, penalties, fines, costs and expenses (including reasonable costs of investigation and defense and the cost of pursuing any insurance providers and all reasonable attorneys’ fees and disbursements), whether before, on or after the Closing Date (collectively, “Losses”), of the Losses actually suffered by a Buyer Indemnitees Indemnitee to the extent resulting from or arising out of: of (i) the breach of any representation or warranty of Seller the Partnership and the GP set forth in Article III of this Agreement (without giving any effect, both for purposes of determining whether a breach has occurred and for purposes of calculating any Losses resulting therefrom, to any qualification as to “materiality” or Article IV; “Partnership Material Adverse Effect” or any similar qualification), (ii) the breach of any representation or warranty of Summit set forth in Article IV of this Agreement (without giving any effect, both for purposes of determining whether a breach has occurred and for purposes of calculating any Losses resulting therefrom, to any qualification as to “materiality” or “Partnership Material Adverse Effect” or any similar qualification), (iii) the breach of any covenant or agreement of Seller the Partnership or the GP contained in this Agreement; (iii) any Transaction Expenses of the Company or the Seller outstanding as of immediately following the Closing to the extent not deducted in the determination of the Purchase Price; , (iv) the breach of any damages covenant or Liabilities imposed on or with respect toagreement of Summit contained in this Agreement, or (v) liabilities and obligations for any Taxes incurred by or with respect to, the Buyer Indemnitees, the Company and/or any of the Company Funds, arising out of or relating to the SEC examination of Fifth Street Management LLC and its Affiliates (including the Company) that commenced on or about October 6, 2015, including any enforcement examinations or actions relating thereto or resulting therefrom, which, for the avoidance of doubt, shall not include any damages or Liabilities related to operation of the Business after the Closing Date; or (v) Liabilities (including for any indemnification obligations, Proceedings or Taxes) imposed on or with respect to, or incurred by or with respect to, any of the Company Funds or the Company Group Entities with respect to any period ending on or before the Closing Date (or, for any period beginning on or before and ending after the Closing Date, all such Liabilities liabilities and obligations for Taxes to the extent allocable to the portion of such period beginning on or before and ending on the Closing DateDate in accordance with Section 6.7(a). With respect to Taxes, the amount of any Taxes based on or measured by income, receipts or payroll of the Company for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date), and the amount of other Taxes of the Company for a Straddle Period that relates to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period. (vi) Any damages the breach of any representation, warranty, covenant or Liabilities imposed on or with respect to, or incurred agreement of Summit contained in the ***. The amount recoverable by or with respect to, the Buyer Indemnitees, the Company and/or any Indemnitees pursuant to this Section 8.2(a) shall be allocated in respect of the Company FundsPurchased Interests that are Class A Interests or the Purchased Interests that are Class B Interests, arising out of as applicable, to the extent any indemnification obligation is attributable to the U.S. Business or relating to any failure to comply with the Retention Undertaking during any period ending on or before the Closing DateNon-U.S. Business. (b) Subject to the other provisions of this Article VIIVIII, Buyer from and after the Closing, Fly shall indemnify, defend and hold harmless the Buyer Indemnitees, without duplication, from and against any and all Losses actually suffered by a Buyer Indemnitee to the extent resulting from or arising out of the breach of any representation or warranty of Fly set forth in Article IV of this Agreement (without giving any effect, both for purposes of determining whether a breach has occurred and for purposes of calculating any Losses resulting therefrom, to any qualification as to “materiality” or “Partnership Material Adverse Effect” or any similar qualification). The amount recoverable by the Buyer Indemnitees pursuant to this Section 8.2(b) shall be allocated in respect of the Purchased Interests that are Class A Interests or the Purchased Interests that are Class B Interests, as applicable, to the extent any indemnification obligation is attributable to the U.S. Business or the Non-U.S. Business. (c) Subject to the other provisions of this Article VIII, from and after the Closing, the Buyers shall, jointly and severally, indemnify, defend and hold harmless the Partnership, the GP, each Seller and its their respective Affiliates, directors, officers, employees, stockholders, members, partners, agents, representatives, successors and permitted assigns (the “Seller Indemnitees”) ), without duplication, from and against any and all Losses actually suffered by a Seller Indemnitee to the extent resulting from or arising out of any of: of (i) the breach, or any claim by a party other than Seller or the Company that if true would constitute a breach, breach of any representation or warranty of such Buyer set forth in Article V of this AgreementAgreement (without giving any effect, or both for purposes of determining whether a breach has occurred and for purposes of calculating any Losses resulting therefrom, to any qualification as to “materiality” or “Buyer Material Adverse Effect” or any similar qualification) or (ii) the breach of any covenant or agreement of any Buyer contained in this Agreement.. *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION ***