Seller Indemnities. With effect from the Completion Date, the Sellers shall jointly and severally indemnify, defend, reimburse and hold harmless the Buyer and its Affiliates (each such Person, a “Buyer Indemnified Party”) from and against, and agree to defend promptly any Buyer Indemnified Party from, and reimburse any Buyer Indemnified Party for: (a) any and all Losses suffered or incurred by any Buyer Indemnified Party, resulting from any claims, Encumbrances, Indebtedness, liens, Liabilities and contingencies of the Constellation Group, including, but not limited to, Tax, labour, environmental, social security, civil, commercial, administrative and anti- corruption liabilities, as per Article 60 and other related provisions of Brazilian Bankruptcy Law and Applicable Laws; (b) any and all Losses related to any alleged or actual violation of any Anti-Corruption Laws by any member of the Constellation Group, claimed by, relating to or resulting from a claim by a competent Governmental Authority in relation to its business, operations, properties, assets or obligations in Brazil where such Losses are attributable to the period prior to the Completion Date; and (c) the Seller Relevant Percentage of any Losses suffered or incurred by any Buyer Indemnified Party which relate to or result from: (i) any claim or sanction by a Governmental Authority or any claim by Petrobras in relation to or resulting from a claim by a Governmental Authority (but excluding any Losses which relate to operational matters of the FPSO Assets which are under the control of JVO Companies) where such Losses (1) relate to the FPSO Assets and (2) are attributable to the Ownership Period; or (ii) any Tax Assessment, (the “FPSO Assets Claims”, and “FPSO Assets Claim” shall be construed accordingly), (Clauses 8.1(a), 8.1(b) and 8.1(c) together, the “Seller Indemnities” and “Seller Indemnity” shall be construed accordingly), provided always that the Seller Indemnities shall be subject to the provisions of Schedule 6.
Appears in 1 contract
Sources: Share Sale Agreement
Seller Indemnities. With effect from the Completion Date, the Sellers shall jointly and severally indemnify, defend, reimburse and hold harmless the Buyer and its Affiliates (each such Person, a “Buyer Indemnified Party”) from and against, and agree to defend promptly any Buyer Indemnified Party from, and reimburse any Buyer Indemnified Party for:
The Seller agrees (a) to pay or reimburse the Purchaser for all its costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement and any of the other Fundamental Documents, including, without limitation, the reasonable fees and disbursements of counsel to the Purchaser, (b) to pay, indemnify and hold the Purchaser harmless from, any and all Losses suffered recording and filing fees and any and all liabilities with respect to, or incurred by any Buyer Indemnified Party, resulting from any claimsdelay in paying stamp, Encumbrancesexcise and other similar taxes, Indebtednessif any, lienswhich may be payable or determined to be payable in connection with the execution and delivery of, Liabilities and contingencies or consummation or administration of any of the Constellation Grouptransactions contemplated by, includingor any amendment, but not limited tosupplement or modification of, Taxor any waiver or consent under or in respect of, labourthis Agreement and any other Fundamental Document and (c) to pay, environmental, social security, civil, commercial, administrative indemnify and anti- corruption liabilities, as per Article 60 hold the Purchaser harmless from and other related provisions of Brazilian Bankruptcy Law and Applicable Laws;
(b) against any and all Losses related to any alleged other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or actual violation disbursements of any Anti-Corruption Laws by any member of the Constellation Group, claimed bykind or nature whatsoever arising out of, relating to or resulting from a claim by a competent Governmental Authority in relation to its businessany of the following (collectively, operations, properties, assets or obligations in Brazil where such Losses are attributable to the period prior to the Completion Date; and
(c) the Seller Relevant Percentage of any Losses suffered or incurred by any Buyer “Purchaser Indemnified Party which relate to or result from:Liabilities”):
(i) the sale of any Transferred Media Asset that is designated by the Seller in a Transfer Notice as a Transferred Media Asset in respect of an Eligible Title that is determined to have not been an Eligible Title at the relevant Transfer Date;
(ii) the transfer by the Seller of any interest in any Transferred Media Asset to any Person other than the Purchaser;
(iii) the failure of any representation or warranty or statement made or deemed made by the Seller under or in connection with this Agreement or in any certificate or report delivered pursuant hereto to be true and correct in any material respect when made or deemed made;
(iv) any third-party claim that the exploitation of any Transferred Media Assets in accordance with the Distribution Agreements infringes upon, misappropriates or sanction by a Governmental Authority otherwise violates any patent, copyright, trademark, trade secret, right of publicity or privacy, moral right or other proprietary right of any Person, or any claim by Petrobras in relation to that any such furnished materials are defamatory or resulting from a claim by a Governmental Authority otherwise tortuous;
(but excluding any Losses which relate to operational matters v) the failure of the FPSO Assets Seller to pay any expenses relating to any Transferred Title which are not Assumed Expenses;
(vi) the failure by the Seller to perform its contractual duties or obligations under this Agreement;
(vii) the control failure by the Seller to comply with any applicable law, rule or regulation of JVO Companies) where such Losses (1) relate any governmental authority with respect to the FPSO Assets and (2) are attributable to the Ownership Periodany Transferred Media Assets; or
(iiviii) any Tax Assessmentobligation of the Seller to third parties (other than in respect of the Assumed Expenses relating to the Transferred Titles) which is set-off by such third party against Gross Receipts of Transferred Titles;
(ix) any claims arising under litigation commenced by Showtime Networks Inc., (the “FPSO Assets Claims”a Delaware corporation against Ventura Distribution, and “FPSO Assets Claim” shall be construed accordingly)Inc. et al or under any litigation related thereto; provided, (Clauses 8.1(a), 8.1(b) and 8.1(c) together, the “Seller Indemnities” and “Seller Indemnity” shall be construed accordingly), provided always that the Seller Indemnities shall be subject have no obligation hereunder to the provisions Purchaser with respect to Purchaser Indemnified Liabilities to the extent such Purchaser Indemnified Liabilities are found by a final and nonappealable decision of Schedule 6a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Purchaser. The agreements in this Article VIII shall (A) survive the termination of this Agreement and the payment of all amounts payable hereunder and (B) continue with respect to any Transferred Media Assets that are the subject of a rescission pursuant to Section 2.03.
Appears in 1 contract
Sources: Sale and Contribution Agreement (First Look Studios Inc)
Seller Indemnities. With effect from Subject to the Completion Dateavailability of funds for such purpose pursuant to the Priority of Payments, the Sellers shall jointly and severally Seller agrees to indemnify, defenddefend and save harmless each Indemnified Party (to the extent not paid by the Originator pursuant to the Receivables Sale Agreement), reimburse and hold harmless other than for the Buyer and its Affiliates (each gross negligence or willful misconduct of or breach of the Transaction Documents by such Person, a “Buyer Indemnified Party”) , forthwith on demand, from and against, and agree to defend promptly any Buyer Indemnified Party from, and reimburse any Buyer Indemnified Party for:
(a) against any and all Losses suffered losses, claims, damages, liabilities, costs and expenses (including all reasonable attorneys’ fees and expenses, the reasonable expenses of settlement, litigation or preparation therefor and, in the case of a Purchaser or the Administrative Agent, reasonable expenses incurred by its credit recovery group (or any successors thereto)) which any Indemnified Party may incur or which may be asserted against any Indemnified Party by any Person (including any Obligor, any Company Party or any other Person whether on its own behalf or derivatively on behalf of any Company Party) arising from or incurred by any Buyer Indemnified Party, resulting from any claims, Encumbrances, Indebtedness, liens, Liabilities and contingencies of the Constellation Group, including, but not limited to, Tax, labour, environmental, social security, civil, commercial, administrative and anti- corruption liabilities, as per Article 60 and other related provisions of Brazilian Bankruptcy Law and Applicable Laws;
(b) any and all Losses related to any alleged or actual violation of any Anti-Corruption Laws by any member of the Constellation Group, claimed by, relating to or resulting from a claim by a competent Governmental Authority in relation to its business, operations, properties, assets or obligations in Brazil where such Losses are attributable to the period prior to the Completion Date; and
(c) the Seller Relevant Percentage of any Losses suffered or incurred by any Buyer Indemnified Party which relate to or result fromconnection with:
(i) the characterization in any claim Monthly Report, Funding Report or sanction other statement made by a Governmental Authority or any claim by Petrobras in relation to or resulting from a claim by a Governmental Authority (but excluding Company Party of any Losses Pool Receivable as an Eligible Receivable which relate to operational matters was not an Eligible Receivable as of the FPSO Assets which are under the control date of JVO Companies) where such Losses (1) relate to the FPSO Assets and (2) are attributable to the Ownership Period; orMonthly Report, Funding Report or statement;
(ii) any Tax Assessmentrepresentation, warranty or statement made or deemed made by any Company Party under or in connection with this Agreement or any other Transaction Document or any Monthly Report, Funding Report or other document delivered by any Company Party or to be delivered by any Company Party in connection herewith or with any other Transaction Document being incorrect in any material respect when made or deemed made or delivered;
(the “FPSO Assets Claims”, and “FPSO Assets Claim” shall be construed accordingly), (Clauses 8.1(a), 8.1(biii) and 8.1(c) together, the “Seller Indemnities” and “Seller Indemnity” shall be construed accordingly), provided always that the Seller Indemnities shall be subject any failure of any Company Party to perform its duties or obligations in all material respects in accordance with the provisions of Schedule 6this Agreement or any other Transaction Document or to perform its duties or obligations with respect to any Receivable;
(iv) the failure by any Company Party to comply with any applicable Law with respect to any Pool Receivable or any other Receivables Asset or Contract with respect thereto, or the failure of any Pool Receivable or any other Receivables Asset or Contract with respect thereto to conform to any such Law;
(v) the failure to vest and maintain in the Administrative Agent a first priority perfected ownership or security interest, as provided herein, in each Pool Receivable and all other Receivables Assets and a first priority perfected security interest in all other Collateral, in each case free and clear of any other Adverse Claim, or the failure of the Seller to obtain and maintain legal and equitable title to the Pool Receivables and all other Collateral, free and clear of any Adverse Claim other than the Adverse Claim in favor of the Administrative Agent pursuant hereto;
(vi) the failure to have filed, or any delay in filing, financing statements, notices of assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable Law with respect to any Pool Receivable or any other Receivables Asset transferred or purported to be transferred to the Seller by the Originator under the Receivables Sale Agreement or to the Administrative Agent for the account of the Purchasers under this Agreement or in which a security interest is granted or purported to be granted to the Seller under the Receivables Sale Agreement or to the Administrative Agent for the benefit of the Purchasers, the Administrative Agent and their Related Parties under this Agreement, and in each case the proceeds of any thereof, whether at the Closing Date, the time of any Cash Outlay or at any subsequent time;
(vii) the existence of any Adverse Claim other than the Adverse Claim in favor of the Administrative Agent pursuant hereto against or with respect to any Pool Receivable or any other Receivables Assets;
(viii) any failure of Seller to give reasonably equivalent value to the Originator under the Receivables Sale Agreement in consideration of the transfer by the Originator of any Pool Receivable or other Receivables Assets, or any attempt by any Person to void any transfer of Pool Receivables or other Receivables Assets transferred or purported transfer to the Seller under the Receivables Sale Agreement under statutory provisions or common law or equitable action;
(ix) any products liability, personal injury or damage, suit or other similar claim arising out of or in connection with merchandise, insurance or services that are subject to any Contract or Pool Receivable;
(x) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor or arising from the financial inability of the Obligor to pay) of any Obligor to the payment of any Pool Receivable (including any defense based on such Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale or lease of the goods or services related to such Receivable or the furnishing or failure to furnish such goods or services;
(xi) the assertion by any Obligor, any Company Party or other Person against any Indemnified Party of any obligation or liability of any Company Party under any Receivable or any other Receivables Assets;
(xii) the commingling of Collections of Receivables at any time with other funds;
(xiii) any action or omission by any Company Party not in accordance with the Transaction Documents reducing or impairing the rights of any Purchaser or the Administrative Agent under this Agreement or any other Transaction Document with respect to any Collateral or reducing or impairing the validity, enforceability, collectability or value of any Collateral, including any compromise, rescission, cancellation, adjustment or modification of a Pool Receivable or any Related Security, whether by written agreement, verbal agreement, acquiescence or otherwise, except in accordance with the Credit and Collection Policy and the provisions of the Transaction Documents in all material respects;
(xiv) any investigation, litigation or proceeding related to or arising from the use of proceeds from any purchase or reinvestment pursuant to this Agreement or of the proceeds of any purchase pursuant to the Receivables Sale Agreement, the servicing, administering or collecting of any Pool Receivable (or the failure to do so) or the ownership of, or other interest in, any Pool Receivable or other Receivables Asset, any other activity by any Company Party or failure by any Company Party to act under this Agreement or the other Transaction Documents or otherwise related to or arising from this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or thereto or any transaction contemplated by this Agreement;
(xv) any failure by any Person to pay or remit when due any Taxes (other than Excluded Taxes), including sales, excise or personal property taxes, payable or to be remitted in connection with any Pool Receivable or any other Receivables Asset or in connection with the purchases or grants of security interests, the servicing, administering or collecting of Pool Receivables or the other transactions contemplated by this Agreement or the other Transaction Documents;
(xvi) any inability to litigate any claim against any Obligor in respect of any Pool Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(xvii) any deductible, aggregate first loss amount or similar amount applied by a Credit Insurer with respect to an Insurance Claim Receivable;
(xviii) any Termination Event with respect to the Seller described in Section 8.01(i);
(xix) any civil penalty or fine assessed by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United States Department of State or other Governmental Authority administering Anti-Terrorism Laws against, and all costs and expenses (including counsel fees and disbursements) incurred in connection with defense thereof by, any Indemnified Party as a result of conduct of any Company Party or any Subsidiary thereof that violates a Sanction;
(xx) any failure to maintain the Credit Insurance Policies applicable to the Pool Receivables in full force and effect or any failure or alleged failure by the Seller otherwise to comply with its obligations under Section 5.06; or
(xxi) any suit or other claim by any Credit Insurer against the Buyer or the Administrative Agent or Purchaser regarding any Credit Insurance Policy, any claim made or paid thereunder or any premium or other amount paid or payable thereunder or any dispute with any Credit Insurer regarding its obligations under any Credit Insurance Policies; provided that nothing in this Section 10.02(a) shall be deemed to provide indemnity to the Indemnified Parties for (i) for credit losses arising from the financial inability of Obligors to pay Receivables or of the Credit Insurers to pay claims or (ii) matters covered pursuant to Section 2.08, 2.09 or 2.10.
Appears in 1 contract
Seller Indemnities. With effect from Without limiting any other rights that the Completion DateAgent, any Administrator or any Purchaser may have hereunder or under applicable law, the Sellers shall jointly Seller hereby agrees to indemnify the Agent, each Administrator and severally indemnifyeach Purchaser and their respective assigns, defendofficers, reimburse directors, agents and hold harmless the Buyer and its Affiliates employees (each such Person, a “Buyer an "Indemnified Party”") from and against, and agree to defend promptly any Buyer Indemnified Party from, and reimburse any Buyer Indemnified Party for:
(a) against any and all Losses suffered damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys' fees (which attorneys may be employees of the Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any Buyer of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by the Agent or a Purchaser of an interest in the Dealer Receivables excluding, however:
(i) Indemnified Party, resulting Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from any claims, Encumbrances, Indebtedness, liens, Liabilities and contingencies gross negligence or willful misconduct on the part of the Constellation Group, including, but not limited to, Tax, labour, environmental, social security, civil, commercial, administrative and anti- corruption liabilities, as per Article 60 and other related provisions of Brazilian Bankruptcy Law and Applicable LawsIndemnified Party seeking indemnification;
(bii) any and all Losses Indemnified Amounts to the extent the same include losses in respect of Dealer Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness or other failure to pay of the related to any alleged or actual violation of any Anti-Corruption Laws Obligor where such failure is not caused by any member action or inaction on the part of AGCO in connection with any Dealer Receivable or Dealer Agreement;
(iii) taxes imposed by the jurisdiction in which such Indemnified Party is organized or in which it is otherwise doing business on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Tax Characterization; provided, however, that nothing contained in this sentence shall limit the liability of either the Seller or the Servicer or limit the recourse of the Constellation GroupPurchasers to either the Seller or the Servicer for amounts otherwise specifically provided to be paid by such Person under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, claimed bythe Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, relating to or resulting from a claim by a competent Governmental Authority without limitation, losses in relation to its businessrespect of uncollectible receivables, operations, properties, assets or obligations in Brazil where such Losses are attributable regardless of whether reimbursement therefor would constitute recourse to the period prior to Seller or the Completion Date; and
(cServicer) the Seller Relevant Percentage of any Losses suffered or incurred by any Buyer Indemnified Party which relate to or result resulting from:
(i) breach of any representation or warranty made by the Seller, the Servicer or the Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(ii) the failure by the Seller, the Servicer or the Originator to comply with any applicable law, rule or regulation with respect to any Dealer Receivable or Contract related thereto, or the nonconformity of any Dealer Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of the Seller, the Servicer or the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(iv) any products liability, personal injury or damage suit, or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Dealer Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Dealer Receivable arising on or prior to the Termination Date (including, without limitation, a defense based on such Dealer Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Dealer Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Dealer Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of a purchase, the ownership of the Ownership Interests or any other investigation, litigation or proceeding relating to the Seller, the Servicer or the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Dealer Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or sanction by a Governmental Authority otherwise from any legal action, suit or proceeding;
(ix) any Early Amortization Event described in Section 9.01(d);
(x) any failure of the Seller to acquire and maintain legal and equitable title to, and ownership of any Dealer Receivable and the Related Security and Collections with respect thereto from the Originator, free and clear of any Adverse Claim (other than as created hereunder); or any claim by Petrobras in relation to or resulting from a claim by a Governmental Authority (but excluding any Losses which relate to operational matters failure of the FPSO Assets which are Seller to give reasonably equivalent value to the Originator under the control Originator Sale Agreement in consideration of JVO Companiesthe transfer by the Originator of any Dealer Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action; or any failure of the Seller to have a first priority perfected security interest in the Equipment the sale of which gave rise to any Dealer Receivable;
(xi) where such Losses (1) relate any failure to vest and maintain vested in the Agent and the Purchasers, or to transfer to the FPSO Assets Agent and the Purchasers, legal and equitable title to, and ownership of, a first priority undivided percentage ownership (2) are attributable to the extent of the Ownership PeriodInterests contemplated hereunder) in the Dealer Receivables, the Related Security and the Collections, free and clear of any Adverse Claim;
(xii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Dealer Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment Purchase or at any subsequent time;
(xiii) any action or omission by either the Seller or the Servicer which reduces or impairs the rights of the Agent or the Purchasers with respect to any Dealer Receivable or the value of any such Dealer Receivable;
(xiv) any attempt by any Person to void any Incremental Purchase or Reinvestment Purchase hereunder under statutory provisions or common law or equitable action; or
(iixv) the failure of any Tax Assessment, (Dealer Receivable treated as or represented to be an Eligible Receivable at any time by the “FPSO Assets Claims”, and “FPSO Assets Claim” shall be construed accordingly), (Clauses 8.1(a), 8.1(b) and 8.1(c) togetherSeller, the “Seller Indemnities” and “Seller Indemnity” shall Originator or the Servicer (including, without limitation, for purposes of calculating the Net Eligible Receivables Balance) to be construed accordingly), provided always that the Seller Indemnities shall be subject to the provisions an Eligible Receivable as of Schedule 6such time.
Appears in 1 contract
Seller Indemnities. With effect from the Completion DateCinedigm, the Sellers shall jointly Seller and the Parent, severally indemnifynot jointly, defend, reimburse and hold harmless the Buyer and its Affiliates (each such Person, a “Buyer Indemnified Party”) from and against, and agree to defend promptly any Buyer Indemnified Party from, and reimburse any Buyer Indemnified Party for:
(a) to pay, indemnify and hold the Purchaser harmless from, any and all Losses suffered recording and filing fees and any and all liabilities with respect to, or incurred by any Buyer Indemnified Party, resulting from any claimsdelay in paying, Encumbrancesany stamp, Indebtednessexcise and other similar taxes, liensif any, Liabilities which may be payable or determined to be payable in connection with the execution and contingencies delivery of, or consummation or administration of any of the Constellation Grouptransactions contemplated by, includingor any amendment, but not limited tosupplement or modification of, Taxor any waiver or consent under or in respect of, labour, environmental, social security, civil, commercial, administrative this Agreement and anti- corruption liabilities, as per Article 60 any such other documents and other related provisions of Brazilian Bankruptcy Law and Applicable Laws;
(b) to pay, indemnify and hold the Purchaser harmless from and against any and all Losses related to any alleged other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or actual violation disbursements of any Anti-Corruption Laws by any member of the Constellation Group, claimed bykind or nature whatsoever arising out of, relating to or resulting from a claim by a competent Governmental Authority in relation to its businessany of the following (collectively, operations, properties, assets or obligations in Brazil where such Losses are attributable to the period prior to the Completion Date; and
(c) the Seller Relevant Percentage of any Losses suffered or incurred by any Buyer “Purchaser Indemnified Party which relate to or result from:Liabilities”):
(i) the transfer by the Seller, Cinedigm or Parent of any interest in any Transferred Asset to any Person other than the Purchaser;
(ii) the failure of any representation or warranty or statement made or deemed made by the Seller, Cinedigm or Parent under or in connection with this Agreement or in any certificate or report delivered pursuant hereto to be true and correct in any material respect when made or deemed made;
(iii) any third-party claim (other than any third-party claim based on any acts or sanction omissions of the Purchaser not consistent with the manner in which the Transferred Assets were exploited by a Governmental Authority the Seller, Cinedigm or the Parent prior to the date hereof) that the exploitation of any Transferred Assets sold hereunder infringes upon, misappropriates or otherwise violates any patent, copyright, trademark, trade secret, right of publicity or privacy, moral right or other proprietary right of any Person, or any claim that any such furnished materials are defamatory or otherwise tortious;
(iv) the failure by Petrobras in relation the Seller, Cinedigm or Parent to perform its contractual duties or resulting from a claim obligations under this Agreement;
(v) the failure by a Governmental Authority (but excluding the Seller, Cinedigm or Parent to comply with any Losses which relate to operational matters Applicable Law, rule or regulation of the FPSO Assets which are under the control of JVO Companies) where such Losses (1) relate any governmental authority with respect to the FPSO Assets and transfer of any Transferred Assets;
(2vi) are attributable to the Ownership Periodany Non-Assumed Obligations; or
(iivii) any Tax Assessment, (the “FPSO Assets Claims”, and “FPSO Assets Claim” shall be construed accordingly), (Clauses 8.1(a), 8.1(b) and 8.1(c) together, the “Seller Indemnities” and “Seller Indemnity” shall be construed accordingly), provided always that the Seller Indemnities shall be subject failure to pay to the provisions of Schedule 6Purchaser any amount with respect to the Transferred Assets received by the Seller, Cinedigm or Parent.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Cinedigm Digital Cinema Corp.)
Seller Indemnities. With effect from Without limiting any other rights that any Indemnified Party may have hereunder or under applicable law, and whether or not any of the Completion Datetransactions contemplated hereby are consummated, the Sellers shall jointly and severally indemnify, defend, reimburse and hold harmless the Buyer and its Affiliates (Seller hereby agrees to indemnify each such Person, a “Buyer Indemnified Party”) Party from and against, and agree to defend promptly hold each thereof harmless from, any Buyer and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of a defense in connection therewith), in each case arising out of, or resulting from, and reimburse any Buyer Indemnified Party for:
in whole or in part, one or more of the following: (a) this Agreement or any and all Losses suffered other Transaction Document or incurred by any Buyer Indemnified Party, resulting from any claims, Encumbrances, Indebtedness, liens, Liabilities and contingencies of the Constellation Group, including, but not limited to, Tax, labour, environmental, social security, civil, commercial, administrative and anti- corruption liabilities, as per Article 60 and other related provisions of Brazilian Bankruptcy Law and Applicable Laws;
agreement or document delivered or to be delivered in connection with this Agreement; (b) any and all Losses related to any alleged or actual violation the use of proceeds of any Anti-Corruption Laws by any member of the Constellation Group, claimed by, relating to Purchase or resulting from a claim by a competent Governmental Authority in relation to its business, operations, properties, assets or obligations in Brazil where such Losses are attributable to the period prior to the Completion Datereinvestment; and
(c) the Seller Relevant Percentage interest of any Losses suffered Owner in any Receivable, any Contract or incurred any Related Security; (d) any transaction contemplated by this Agreement or any other Transaction Document or any other agreement or document delivered or to be delivered in connection with this Agreement; or (e) the use of the Platform as contemplated herein or any action taken or omitted by any Buyer Indemnified Party in good faith in reliance on any notice or other written communication in the form of an e-mail or a telecopy or facsimile purporting to be from the Seller; excluding, however, amounts to the extent resulting solely and directly from any of (x) the gross negligence or willful misconduct on the part of such Indemnified Party, as determined by a court of competent jurisdiction in a final, non-appealable judgment, (y) the lack of creditworthiness of an Obligor or (z) the failure to collect amounts in respect of a Pool Receivable, to the extent such failure results from a discharge of the Obligor with respect thereto in a proceeding in respect of such Obligor under applicable bankruptcy laws or otherwise results from the Obligor’s financial inability to pay such amounts (all of the foregoing, other than those matters excluded pursuant to clauses (x), (y) and (z) above, being collectively referred to as “Indemnified Amounts”). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.01 applies, such indemnity shall be effective whether or not such investigation, litigation or other proceeding is brought by the Seller, any of its directors, security holders or creditors, an Indemnified Party or any other Person or an Indemnified Party is otherwise a party thereto. Without limiting or being limited by the foregoing and whether or not any of the transactions contemplated hereby are consummated, the Seller shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts which relate to or result from, or which would not have occurred but for, one or more of the following:
(i) any claim or sanction by Receivable becoming a Governmental Authority or any claim by Petrobras in relation to or resulting from a claim by a Governmental Authority (but excluding any Losses Pool Receivable which relate to operational matters is not at the date of the FPSO Assets which are under the control initial creation of JVO Companies) where such Losses (1) relate to the FPSO Assets and (2) are attributable to the Ownership Period; oran interest therein hereunder an Eligible Receivable;
(ii) any Tax Assessmentrepresentation or warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement or any other Transaction Document or any Seller Report, Weekly Report, Daily Report or other document delivered or to be delivered in connection herewith or with any other Transaction Document being incorrect in any material respect when made or deemed made or delivered;
(iii) the “FPSO Assets Claims”failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract or any Related Security with respect thereto; or the failure of any Pool Receivable or the related Contract or any Related Security with respect thereto to conform to any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner of a Receivable Interest a first priority perfected undivided percentage ownership interest, to the extent of such Receivable Interest, in each Receivable in, or purported to be in, the Receivables Pool and “FPSO Assets the Related Security and Collections in respect thereof, free and clear of any Adverse Claim” shall ; or the failure of the Seller to have obtained a first priority perfected ownership interest in the Pool Receivables and the Related Security and Collections with respect thereto transferred or purported to be construed accordinglytransferred to the Seller under either Sale Agreement, free and clear of any Adverse Claim;
(v) the failure of the Seller to have filed, or any delay by the Seller in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable in, or purported to be in, the Receivables Pool and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment or at any subsequent time unless such failure results directly and solely from the Agent’s failure to take appropriate action;
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of any Obligor to the payment of any Receivable in, or purported to be in, the Receivables Pool (including, without limitation, any defense based on the fact or allegation that such Receivable or the related Contract is not a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods or services related to such Receivable or the furnishing or failure to furnish such goods or services;
(Clauses 8.1(a), 8.1(bvii) and 8.1(c) together, the “Seller Indemnities” and “Seller Indemnity” shall be construed accordingly), provided always that any failure of the Seller Indemnities shall be subject to perform its duties or obligations in accordance with the provisions of Schedule 6this Agreement or any other Transaction Document or to perform its duties or obligations under any Contract;
(viii) any product liability, personal injury, copyright infringement, theft of services, property damage, or other breach of contract, antitrust, unfair trade practices or tortious claim arising out of or in connection with subject matter of any Contract or out of or in connection with any transaction contemplated by this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or such Contract;
(ix) the commingling by the Seller of Collections of Pool Receivables at any time with other funds;
(x) any action or omission by the Seller, reducing or impairing the rights of any Owner of a Receivable Interest under this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or thereto or with respect to any Pool Receivable;
(xi) any cancellation or modification of a Pool Receivable, the related Contract or any Related Security, whether by written agreement, verbal agreement, acquiescence or otherwise;
(xii) any investigation, litigation or proceeding related to or arising from this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or thereto, or any transaction contemplated by this Agreement or any Contract or the use of proceeds from any Purchase or reinvestment pursuant to this Agreement, or the ownership of, or other interest in, any Receivable, the related Contract or Related Security;
(xiii) the existence of any Adverse Claim against or with respect to any Pool Receivable, the related Contract or the Related Security or Collections with respect thereto;
(xiv) any failure by the Seller to pay when due any taxes, including without limitation sales, excise or personal property taxes, payable by the Seller in connection with any Receivable or the related Contract or any Related Security with respect thereto;
(xv) any claim brought by any Person other than an Indemnified Party arising from any activity of the Seller in servicing, administering or collecting any Pool Receivable;
(xvi) any failure by any Lock-Box Bank to comply with the terms of the Lock-Box Agreement to which it is a party; or
(xvii) to the extent not covered by the foregoing clauses, the occurrence and continuance of any Event of Termination.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Crown Holdings Inc)
Seller Indemnities. With effect from Without limiting any other rights that any Indemnified Party may have hereunder or under applicable law, and whether or not any of the Completion Datetransactions contemplated hereby are consummated, the Sellers shall jointly and severally indemnify, defend, reimburse and hold harmless the Buyer and its Affiliates (Seller hereby agrees to indemnify each such Person, a “Buyer Indemnified Party”) Party from and against, and agree to defend promptly hold each thereof harmless from, any Buyer and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of a defense in connection therewith), in each case arising out of, or resulting from, and reimburse any Buyer Indemnified Party for:
in whole or in part, one or more of the following: (a) this Agreement or any and all Losses suffered other Transaction Document or incurred by any Buyer Indemnified Party, resulting from any claims, Encumbrances, Indebtedness, liens, Liabilities and contingencies of the Constellation Group, including, but not limited to, Tax, labour, environmental, social security, civil, commercial, administrative and anti- corruption liabilities, as per Article 60 and other related provisions of Brazilian Bankruptcy Law and Applicable Laws;
agreement or document delivered or to be delivered in connection with this Agreement; (b) any and all Losses related to any alleged or actual violation the use of proceeds of any Anti-Corruption Laws by any member of the Constellation Group, claimed by, relating to Purchase or resulting from a claim by a competent Governmental Authority in relation to its business, operations, properties, assets or obligations in Brazil where such Losses are attributable to the period prior to the Completion Datereinvestment; and
(c) the Seller Relevant Percentage interest of any Losses suffered Owner in any Receivable, any Contract or incurred any Related Security; (d) any transaction contemplated by this Agreement or any other Transaction Document or any other agreement or document delivered or to be delivered in connection with this Agreement; or (e) any action taken or omitted by any Buyer Indemnified Party in good faith in reliance on any notice or other written communication in the form of an e-mail or a telecopy or facsimile purporting to be from the Seller; excluding, however, amounts to the extent resulting solely and directly from any of (x) the gross negligence or willful misconduct on the part of such Indemnified Party, as determined by a court of competent jurisdiction in a final, non-appealable judgment, (y) the lack of creditworthiness of an Obligor or (z) the failure to collect amounts in respect of a Pool Receivable, to the extent such failure results from a discharge of the Obligor with respect thereto in a proceeding in respect of such Obligor under applicable bankruptcy laws or otherwise results from the Obligor’s financial inability to pay such amounts (all of the foregoing, other than those matters excluded pursuant to clauses (x), (y) and (z) above, being collectively referred to as “Indemnified Amounts”). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.01 applies, such indemnity shall be effective whether or not such investigation, litigation or other proceeding is brought by the Seller, any of its directors, security holders or creditors, an Indemnified Party or any other Person or an Indemnified Party is otherwise a party thereto. Without limiting or being limited by the foregoing and whether or not any of the transactions contemplated hereby are consummated, the Seller shall pay pursuant to Sections 2.05 and 2.06 to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts which relate to or result from, or which would not have occurred but for, one or more of the following:
(i) any claim or sanction by Receivable becoming a Governmental Authority or any claim by Petrobras in relation to or resulting from a claim by a Governmental Authority (but excluding any Losses Pool Receivable which relate to operational matters is not at the date of the FPSO Assets which are under the control of JVO Companies) where such Losses (1) relate to the FPSO Assets and (2) are attributable to the Ownership Period; ortransfer thereof hereunder an Eligible Receivable;
(ii) any Tax Assessmentrepresentation or warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement or any other Transaction Document or any Seller Report, Weekly Report, Daily Report or other document delivered or to be delivered in connection herewith or with any other Transaction Document being incorrect in any material respect when made or deemed made or delivered;
(iii) the “FPSO Assets Claims”failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract or any Related Security with respect thereto; or the failure of any Pool Receivable or the related Contract or any Related Security with respect thereto to conform to any such applicable law, rule or regulation;
(iv) the failure to vest in the Agent a first priority perfected ownership interest or security interest in each Receivable in, or purported to be in, the Receivables Pool and “FPSO Assets the Related Security and Collections in respect thereof, free and clear of any Adverse Claim” shall ; or the failure of the Seller to have obtained a first priority perfected ownership interest in the Pool Receivables and the Related Security and Collections with respect thereto transferred or purported to be construed accordinglytransferred to the Seller under the Sale Agreement, free and clear of any Adverse Claim;
(v) the failure of the Seller to have filed, or any delay by the Seller in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable in, or purported to be in, the Receivables Pool and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment or at any subsequent time unless such failure results directly and solely from the Agent’s failure to take appropriate action;
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of any Obligor to the payment of any Receivable in, or purported to be in, the Receivables Pool (including, without limitation, any defense based on the fact or allegation that such Receivable or the related Contract is not a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods or services related to such Receivable or the furnishing or failure to furnish such goods or services;
(Clauses 8.1(a), 8.1(bvii) and 8.1(c) together, the “Seller Indemnities” and “Seller Indemnity” shall be construed accordingly), provided always that any failure of the Seller Indemnities shall be subject to perform its duties or obligations in accordance with the provisions of Schedule 6this Agreement or any other Transaction Document or to perform its duties or obligations under any Contract;
(viii) any product liability, personal injury, copyright infringement, theft of services, property damage, or other breach of contract, antitrust, unfair trade practices or tortious claim arising out of or in connection with subject matter of any Contract or out of or in connection with any transaction contemplated by this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or such Contract;
(ix) the commingling by the Seller of Collections of Pool Receivables at any time with other funds;
(x) any action or omission by the Seller, reducing or impairing the rights of any Owner under this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or thereto or with respect to any Pool Receivable;
(xi) any cancellation or modification of a Pool Receivable, the related Contract or any Related Security, whether by written agreement, verbal agreement, acquiescence or otherwise;
(xii) any investigation, litigation or proceeding related to or arising from this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or thereto, or any transaction contemplated by this Agreement or any Contract or the use of proceeds from any Purchase or reinvestment pursuant to this Agreement, or the ownership of, or other interest in, any Receivable, the related Contract or Related Security;
(xiii) the existence of any Adverse Claim against or with respect to any Pool Receivable, the related Contract or the Related Security or Collections with respect thereto;
(xiv) any failure by the Seller to pay when due any taxes, including without limitation sales, excise or personal property taxes, payable by the Seller in connection with any Receivable or the related Contract or any Related Security with respect thereto;
(xv) any claim brought by any Person other than an Indemnified Party arising from any activity of the Seller in servicing, administering or collecting any Pool Receivable;
(xvi) any failure by any Lock-Box Bank to comply with the terms of the Lock-Box Agreement to which it is a party; or
(xvii) to the extent not covered by the foregoing clauses, the occurrence and continuance of any Event of Termination.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Crown Holdings Inc)
Seller Indemnities. With effect from the Completion Date, the Sellers Seller shall jointly and severally indemnify, defend, reimburse defend and hold harmless the Buyer and its Buyer's current and future Affiliates and Affiliated Parties (each such Personthe "BUYER INDEMNIFIED PARTIES") from, against and with respect to any claim, liability, obligation, loss, damage, assessment, judgment, settlement, cost and expense, reasonable attorneys' and accountants' fees, and costs and expenses reasonably incurred in investigating, preparing, defending against or prosecuting any litigation or claim, action, suit, proceeding or demand (individually, a “Buyer Indemnified Party”) from "LOSS" and againstcollectively, and agree "LOSSES"), of any kind or character (except as set forth in Section 7.7(g)), arising out of or in any manner incident, relating or attributable to defend promptly any Buyer Indemnified Party from, and reimburse any Buyer Indemnified Party for:
(a) any inaccuracy in any representation or breach of any warranty of Seller contained in this Agreement, the Ancillary Agreements or in any certificate, instrument of transfer or other document or agreement executed by Seller in connection with this Agreement or otherwise made or given in connection with this Agreement (together with this Agreement and all Losses suffered or incurred by any Buyer Indemnified Partythe Ancillary Agreements, resulting from any claimsthe "SELLER AGREEMENTS"), Encumbrances, Indebtedness, liens, Liabilities and contingencies of the Constellation Group, including, but not limited to, Tax, labour, environmental, social security, civil, commercial, administrative and anti- corruption liabilities, as per Article 60 and other related provisions of Brazilian Bankruptcy Law and Applicable Laws;
(b) any and all Losses related failure by Seller to perform or observe, or to have performed or observed, in full, any alleged covenant or actual violation of agreement to be performed or observed by Seller under any Anti-Corruption Laws by any member of the Constellation GroupSeller Agreements, claimed by, relating to or resulting from a claim by a competent Governmental Authority in relation to its business, operations, properties, assets or obligations in Brazil where such Losses are attributable to the period prior to the Completion Date; and
(c) Environmental Liabilities, (d) the enforcement of Buyer's rights against Seller Relevant Percentage of under any Seller Agreements (if Buyer is deemed by the applicable court to be the prevailing party in any such enforcement or if any Losses suffered are paid by Seller under this Article 7 respecting such enforcement), (e) any Liabilities under, respecting or incurred by any Buyer Indemnified Party which relate to or result from:
arising from (i) any claim or sanction by a Governmental Authority or any claim by Petrobras in relation to or resulting from a claim by a Governmental Authority (but excluding any Losses which relate to operational matters that certain Loan Agreement dated as of April 30, 1999, as amended, among PSI, Key Corporate Capital Inc., as agent, and the FPSO Assets which are under the control of JVO Companies) where such Losses (1) relate to the FPSO Assets and (2) are attributable to the Ownership Period; or
other parties thereto, (ii) the ISDA Master Agreement with KCCI, dated as of July 19, 2001 or (iii) any Tax Assessmentand all other documents described as loan documents in, or otherwise evidencing, securing or in any way related to said Loan Agreement or said Master Agreement, (f) any of the “FPSO Assets Claims”, and “FPSO Assets Claim” shall be construed accordingly)matters set forth on SCHEDULE 4.17(B) hereto, (Clauses 8.1(a)g) any claim, 8.1(bdemand or allegation by any third party relating to any of the foregoing, or (h) and 8.1(cthe failure of ▇▇▇▇▇▇ ▇▇▇▇▇▇ to deliver the original promissory note described on SCHEDULE 2.5(A) together, stamped or marked paid in full following payment of the “Seller Indemnities” and “Seller Indemnity” shall be construed accordingly), provided always that the Seller Indemnities shall be subject to the provisions of Schedule 6amount set forth on SCHEDULE 2.5(A) in respect thereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Integrated Alarm Services Group Inc)