Common use of The Seller’s Indemnification Clause in Contracts

The Seller’s Indemnification. In order to implement the foregoing, but subject to the provisions of Section 33.2, the Sellers hereby defend, indemnify and agree to hold harmless Purchaser and any affiliate of Purchaser which receives an assignment of any of the Membership Interests from the Sellers at Closing (Purchaser and any such affiliates shall, for purpose of this Article 33, be referred to collectively as "Purchaser") from and against all liabilities, obligations, debts, claims, causes of action, judgments and damages which may be asserted against, imposed on or incurred by Owner after the Closing by reason of any of the following: (i) any obligations of Owner for borrowed money which was incurred prior to the Closing; (ii) any claims against the Owner under Leases for overpaid Rents or other charges, for failure of the landlord thereof to perform any of its obligations thereunder or for misapplication of security deposits, in each case with respect to any period prior to the Closing; (iii) any claims made by any party (other than Owner) to any of the Other Agreements with respect to any period prior to the Closing; (iv) all obligations and payments due from Owner to creditors with respect to any period prior to the Closing; (v) any amounts due and payable by Owner to the Managing Agent (including, without limitation, those arising out of the termination of the Management Agreement); (vi) all obligations with respect to existing litigation against Owner, or any litigation in connection with the actions or omissions of Owner, instituted against Owner after the date hereof or on or after the Closing Date to the extent based on any event occurring prior to the Adjustment Point; (vii) any income, excise, franchise or other taxes payable by Owner in respect of any period prior to the Adjustment Point; (viii) any other liabilities, obligations, debts, claims, causes of action, judgments or damages which may be imposed upon, incurred by or asserted against Owner in connection with the actions or omissions of Owner and which are based on any event occurring prior to the Closing (including, but not limited to, Owner's obligations under the ATM Agreement and under that certain Release and Termination of Leasehold Agreement by and between WB Stage 16 and Owner, dated January 3, 2003); (ix) any liabilities or obligations relating to any property of Owner (other than the Property or related property) or any activities of Owner (other than the ownership and operation of the Property and related property); and (x) any fine, penalty or the like that is imposed or assessed by a governmental authority for the period prior to the Closing, whether or not imposed or assessed before or after the Closing (the foregoing, collectively, the "Excluded Liabilities").

The Seller’s Indemnification. In order to implement the foregoingThe Seller shall indemnify Buyer, but subject to the provisions of Section 33.2its Affiliates and their respective officers, directors, employees, agents, partners, representatives, successors and permitted assigns (collectively, the Sellers hereby defend, indemnify “Buyer Parties”) and agree to hold each of them harmless Purchaser and any affiliate of Purchaser which receives an assignment of any of the Membership Interests from the Sellers at Closing (Purchaser and any such affiliates shall, for purpose of this Article 33, be referred to collectively as "Purchaser") from and against all liabilitiesand pay on behalf of or reimburse such Buyer Parties in respect of any loss (including diminution in value), obligationsLiability, debtsdemand, claimsclaim, causes action, cause of action, judgments and damages which may be asserted againstcost, imposed on damage, deficiency, Tax, penalty, fine or incurred by Owner after the Closing by reason expense, whether or not arising out of any of the following: (i) any obligations of Owner for borrowed money which was incurred prior to the Closing; (ii) any third party claims against the Owner under Leases for overpaid Rents or other charges, for failure of the landlord thereof to perform any of its obligations thereunder or for misapplication of security deposits, in each case with respect to any period prior to the Closing; (iii) any claims made by any party (other than Owner) to any of the Other Agreements with respect to any period prior to the Closing; (iv) all obligations and payments due from Owner to creditors with respect to any period prior to the Closing; (v) any amounts due and payable by Owner to the Managing Agent (including, without limitation, those interest, penalties, reasonable attorneys’, accountants’ and other professionals’ fees and expenses, court costs and all amounts paid in investigation, defense or settlement of any of the foregoing) (collectively, “Losses” and individually, a “Loss”) which any such Buyer Party may suffer, sustain or become subject to, as a result of, in connection with, relating to or by virtue of: (i) the breach of any representation or warranty made by the Seller or the Company contained in this Agreement or the other Transaction Documents to any Buyer Party; (ii) the breach of any covenant or agreement made by the Seller or the Company contained in this Agreement or the Transaction Documents; provided, however, as to the Company, only if such covenant or agreement is required to be performed at or before the Closing; (iii) any Transaction Expenses of the Company as of the Closing; and (iv) any Indebtedness of the Company as of the Closing to the extent not repaid prior to, or in connection with, the Closing; provided, that with respect to any claim for indemnification by any Buyer Party pursuant to Section 7.2(a)(i): (A) the Seller shall have no liability for such claim unless the aggregate amount of Losses with respect to all indemnification claims made pursuant to Section 7.2(a)(i) exceeds Two Hundred Fifty Thousand Dollars ($250,000) (the “Deductible”) and then only to the extent the Losses relating to such claims exceed the Deductible; provided, that in calculating whether the Deductible has been exceeded, only claims (or series of claims arising from the same or substantially similar facts or circumstances) for Losses in excess of Fifty Thousand Dollars ($50,000) (the “Mini-Basket”) shall be considered (B) the Seller’s maximum liability for all such claims shall not exceed Five Million Dollars ($5,000,000) (the “Cap”); provided, that such limitation shall not apply to, and each Buyer Party shall be entitled to make, claims for indemnification in respect of (i) Losses arising out of any inaccuracy or breach of any Fundamental Representation, (ii) pre-Closing Taxes (which are covered by Section 8.1) or (iii) Losses arising out of fraud or intentional misrepresentation, in each case notwithstanding the termination exhaustion of the Management Indemnification Escrow Amount and (C) Seller’s indemnity obligation for direct claims asserted by Buyer (but excluding any claims made in connection with Section 8.1 of this Agreement or breaches of any covenant included in this Agreement); , for any Loss under any theory of liability or cause of action shall terminate on the fifth anniversary of the date hereof. For purposes of Section 7.2(a) and Section 7.2(b), the existence of a breach and the determination of the Loss related thereto shall be determined without giving effect to any qualification in the representations and warranties of the Seller or Buyer by “materiality,” “in all material respects,” “Material Adverse Effect” or words of similar effect. The Seller shall not be liable for Losses (vii) all to the extent such Losses are taken into account in the Final Working Capital, Final Cash, Final Indebtedness or Final Transaction Expenses or have otherwise been previously paid by the Seller, or (ii) under Section 7.2(a) as a result of, in connection with, relating to or by virtue of Taxes of the Company (or, following the Closing, Buyer or any Affiliate of Buyer) for any taxable period (whether ending before, on, or after the Closing Date) (which the Parties acknowledge and agree are exclusively covered by and limited under Section 8.1 including limited indemnification obligations with respect to existing litigation against OwnerNet Overhead Capitalization Tax Cost). For the avoidance of doubt, nothing in this Section 7.2(a) shall derogate from the Seller’s right at law or equity to directly recover from any litigation in connection with the actions officer, director or omissions of Owner, instituted against Owner after the date hereof or on or after the Closing Date to the extent based on any event occurring prior to the Adjustment Point; (vii) any income, excise, franchise or other taxes payable by Owner in respect of any period prior to the Adjustment Point; (viii) any other liabilities, obligations, debts, claims, causes of action, judgments or damages which may be imposed upon, incurred by or asserted against Owner in connection with the actions or omissions of Owner and which are based on any event occurring prior to the Closing (including, but not limited to, Owner's obligations under the ATM Agreement and under that certain Release and Termination of Leasehold Agreement by and between WB Stage 16 and Owner, dated January 3, 2003); (ix) any liabilities or obligations relating to any property of Owner (other than the Property or related property) or any activities of Owner (other than the ownership and operation employee of the Property and related property); and (x) any fineCompany, penalty or the like that is imposed or assessed by a governmental authority for the period in each case, as of immediately prior to the Closing, whether any Losses resulting from such Person’s fraud or not imposed or assessed before or after the Closing (the foregoing, collectively, the "Excluded Liabilities")intentional misrepresentation.

The Seller’s Indemnification. In order to implement the foregoingThe Sellers hereby agree, but subject to the provisions hereof, to assume and to indemnify and hold the Buyer harmless from and after the date of Section 33.2this Agreement, against and in respect of all losses, liabilities, damages or reasonable expenses incurred by the Buyer (i) that result from any material misrepresentation, breach of warranty or nonfulfillment of any covenant on the part of the Sellers hereby defendunder this Agreement or contained in any agreement, indemnify and agree to hold harmless Purchaser and any affiliate of Purchaser which receives an assignment of any of the Membership Interests from certificate or other instrument furnished by the Sellers at Closing (Purchaser and any Closing, provided that such affiliates shallclaimed losses, for purpose of this Article 33, be referred to collectively as "Purchaser") from and against all liabilities, obligations, debts, claims, causes damages or reasonable expenses are reasonably itemized and described in a written notice of action, judgments and damages which may be asserted against, imposed on or incurred claim signed by Owner after the Closing by reason of any a duly authorized officer of the following: Buyer and received by the Sellers within one (i1) any obligations of Owner for borrowed money which was incurred prior to the Closing; (ii) any claims against the Owner under Leases for overpaid Rents or other charges, for failure of the landlord thereof to perform any of its obligations thereunder or for misapplication of security deposits, in each case with respect to any period prior to the Closing; (iii) any claims made by any party (other than Owner) to any of the Other Agreements with respect to any period prior to the Closing; (iv) all obligations and payments due from Owner to creditors with respect to any period prior to the Closing; (v) any amounts due and payable by Owner to the Managing Agent (including, without limitation, those arising out of the termination of the Management Agreement); (vi) all obligations with respect to existing litigation against Owner, or any litigation in connection with the actions or omissions of Owner, instituted against Owner after the date hereof or on or year after the Closing Date (subject to the extent based on Sellers' right to dispute such claim or any event occurring prior to the Adjustment Point; portion thereof) or (viiii) any income, excise, franchise arising from or other taxes payable by Owner in respect of any period prior to the Adjustment Point; (viii) any other liabilities, obligations, debts, claims, causes of action, judgments or damages which may be imposed upon, incurred by or asserted against Owner in connection with any Retained Liabilities; provided, however, that any Environmental Claim shall be governed by the actions or omissions provisions of Owner Section 13.4 of this Agreement, and which are based on Buyer shall not be entitled to recover for any event occurring prior such Environmental Claim pursuant to the Closing (including, but not limited to, Owner's obligations under the ATM Agreement and under that certain Release and Termination of Leasehold Agreement by and between WB Stage 16 and Owner, dated January 3, 2003); (ix) any liabilities or obligations relating to any property of Owner (other than the Property or related property) or any activities of Owner (other than the ownership and operation of the Property and related property); and (x) any fine, penalty or the like that is imposed or assessed by a governmental authority for the period prior to the Closing, whether or not imposed or assessed before or after the Closing (this Section 13.2. Notwithstanding the foregoing, collectivelythe Sellers shall not be obligated to indemnify and hold the Buyer harmless for any such loss, liability, damage, or expense unless (i) the amount for which indemnity would otherwise be due for any single item of loss, liability, damage or expense exceeds Fifty Thousand Dollars ($50,000), or (ii) the total of all amounts for which indemnity would otherwise be due for all such single items exceeds One Hundred Thousand Dollars ($100,000) and then only up to twenty (20%) per cent of the Cash Purchase Price. As a condition to any liability on the part of the Sellers under this Section 13.2, the "Excluded Liabilities")Buyer shall notify the Sellers in writing of any fact or circumstance which may give rise to liability under this Section 13.2 with reasonable promptness after such fact or circumstance first comes to the attention of the Buyer or any of its officers, agents or employees, and the Sellers and their legal representatives shall have, at the Sellers' election, a right to compromise or defend any such matter involving asserted liability through counsel of their own choosing at the Sellers' expense. In the event the Sellers undertake to compromise or defend any such liability, they shall notify the Buyer in writing promptly of their intention to do so, and the Buyer shall cooperate with the Sellers and their counsel in the compromising of or the defending against any such liabilities or claims. The Sellers shall not be liable under this Section for any settlement of any such matter effected without their prior written consent, nor shall they be liable to the Buyer for any costs of litigation or settlement if the Sellers undertake the defense of the action.

The Seller’s Indemnification. In order to implement After the foregoing, but subject to the provisions of Section 33.2Closing, the Sellers hereby defendSeller shall indemnify Buyer, indemnify its Affiliates and agree to their respective officers, directors, employees, agents, partners, representatives, successors and permitted assigns (collectively, the “Buyer Parties”) and hold each of them harmless Purchaser and any affiliate of Purchaser which receives an assignment of any of the Membership Interests from the Sellers at Closing (Purchaser and any such affiliates shall, for purpose of this Article 33, be referred to collectively as "Purchaser") from and against all liabilitiesand pay on behalf of or reimburse such Buyer Parties in respect of any loss, obligationsLiability, debtsdemand, claimsclaim, causes action, cause of action, judgments and damages which may be asserted againstcost, imposed on damage, deficiency, Tax, penalty, fine or incurred by Owner after the Closing by reason expense, whether or not arising out of any of the following: (i) any obligations of Owner for borrowed money which was incurred prior to the Closing; (ii) any third party claims against the Owner under Leases for overpaid Rents or other charges, for failure of the landlord thereof to perform any of its obligations thereunder or for misapplication of security deposits, in each case with respect to any period prior to the Closing; (iii) any claims made by any party (other than Owner) to any of the Other Agreements with respect to any period prior to the Closing; (iv) all obligations and payments due from Owner to creditors with respect to any period prior to the Closing; (v) any amounts due and payable by Owner to the Managing Agent (including, without limitation, those arising out interest, penalties, reasonable attorneys’, accountants’ and other professionals’ fees and expenses, court costs and all reasonable amounts paid in investigation, defense or settlement of any of the termination foregoing) (collectively, “Losses” and individually, a “Loss”) which any such Buyer Party suffers, sustains or becomes subject to, arising from or as a result of: (i) the breach by the Seller or the Company of any representation or warranty made by the Seller or the Company contained in this Agreement, the other Transaction Documents or any certificate of the Management Agreement); (vi) all obligations with respect to existing litigation against Owner, Seller or any litigation in connection with the actions Company Group delivered by the Seller or omissions of Owner, instituted against Owner after the date hereof or on or after the Closing Date Company to the extent based on any event occurring prior to Buyer pursuant hereto or thereto; (ii) the Adjustment Point; (vii) any income, excise, franchise or other taxes payable by Owner in respect breach of any period prior covenant or agreement to be performed by (A) the Adjustment Point; Seller or (viiiB) any other liabilities, obligations, debts, claims, causes of action, judgments or damages which may be imposed upon, incurred by or asserted against Owner in connection with the actions or omissions of Owner and which are based on any event occurring Company prior to the Closing contained in this Agreement or the other Transaction Documents; (including, but iii) any Transaction Expenses of the Company as of the Closing to the extent not limited repaid prior to, Owner's obligations under or in connection with, the ATM Agreement Closing and under not otherwise included in the calculation of Final Transaction Expenses, Final Indebtedness, or Final Working Capital; (iv) any Indebtedness of the Company as of the Closing to the extent not repaid prior to, or in connection with, the Closing and not otherwise included in the calculation of Final Indebtedness, Final Transaction Expenses or Final Working Capital; and (v) any defined benefit pension plan, including any multiemployer pension plan, subject to Title IV of ERISA, including as a consequence of any Acquired Company having been treated as a single employer with any ERISA Affiliate. provided, that certain Release with respect to any claim for indemnification by the Buyer pursuant to Section 9.2(a)(i): (A) the Seller shall have no liability for such claim unless the aggregate amount of Losses with respect to all indemnification claims made pursuant to Section 9.2(a)(i) exceeds Nine Hundred Seventy Five Thousand Dollars ($975,000) (the “Deductible”) and Termination then only to the extent the Losses relating to such claims exceed the Deductible; provided, that in calculating whether the Deductible has been exceeded, only claims (or series of Leasehold Agreement by claims arising from the same or substantially similar facts or circumstances) for Losses in excess of Twenty-Five Thousand Dollars ($25,000) (the “Mini-Basket”) shall be considered and between WB Stage 16 and Owner, dated January 3, 2003(B) the Seller’s maximum liability for all such claims shall not exceed Nine Hundred Seventy Five Thousand Dollars ($975,000) (the “Cap”); provided, that such limitation shall not apply to, and each Buyer Party shall be entitled to make, claims for indemnification in respect of (ixi) Losses arising out of any liabilities breach of any Fundamental Representation, (ii) pre Closing Taxes (which are covered by Section 10.1(c); or obligations relating (iii) Losses arising out of Actual Fraud in the making of the representations and warranties in this Agreement, in each case notwithstanding the exhaustion of the Indemnification Escrow Amount; provided further, however, that the Seller’s maximum liability for all claims pursuant to Section 9.2(a) and Section 10.1(c) shall not exceed an amount equal to the portion of the Purchase Price actually received by the Seller. For purposes of Section 9.2(a) and Section 9.2(b), the existence of a breach and the determination of the Loss related thereto shall be determined without giving effect to any property qualification in the representations and warranties of Owner (the Seller or Buyer by “materiality,” “in all material respects,” “Material Adverse Effect” or words of similar effect, other than the Property or related property) or any activities of Owner (other than the ownership Section 4.6, Section 4.8(a), and operation of the Property and related property); and (x) any fineSection 4.11, penalty or the like that is imposed or assessed by a governmental authority and, for the period prior to the Closingavoidance of doubt, whether or not imposed or assessed before or after the Closing (the foregoing, collectively, the "Excluded Liabilities")any defined term.

The Seller’s Indemnification. In order to implement From and after the foregoingClosing, but subject to the provisions of this Section 33.28, the Sellers hereby Sellers, jointly and severally, agree to defend, indemnify indemnify, and agree to hold harmless Purchaser and each of its affiliates, each of their respective officers, directors, employees, shareholders, agents, legal representatives, successors, and permitted assigns (the "PURCHASER INDEMNIFIED PARTIES"), harmless from, and against any affiliate loss, claim, damage, liability, penalty, or other cost or expense (including reasonable attorneys' fees and costs) incurred or sustained by any of Purchaser which receives an assignment them (a "LOSS"), at any time, on account of, relating to, or resulting from: (a) any breach of any representation or warranty given by Sellers and the Company in this Agreement or any of the Membership Interests from documents, agreements or instruments delivered at Closing; (b) any nonperformance or breach of any covenant, agreement, document or instrument of the Sellers at Closing (Purchaser and any such affiliates shallor the Company contained in, for purpose of referenced in, and/or made pursuant to this Article 33, be referred to collectively as "Purchaser") from and against all liabilities, obligations, debts, claims, causes of action, judgments and damages which may be asserted against, imposed on Agreement or incurred by Owner after the Closing by reason of any of the following: (i) any obligations of Owner for borrowed money which was incurred prior to the documents, agreements or instruments delivered at Closing; (iic) any claims against the Owner under Leases for overpaid Rents claim or other charges, for failure of the landlord thereof to perform any of its obligations thereunder or for misapplication of security deposits, in each case with respect to any period prior Liability to the Closing; (iii) any claims made by any party (other than Owner) to any of the Other Agreements with respect to any period prior to the Closing; (iv) all obligations and payments due from Owner to creditors with respect to any period prior to the Closing; (v) any amounts due and payable by Owner to the Managing Agent (including, without limitation, those Company's employees arising out of the termination of the Management Agreement); (vi) all obligations with respect to existing litigation against Owner, or any litigation in connection with the actions or omissions of Owner, instituted against Owner after the date hereof or on or after the Closing Date to the extent based on any event occurring prior to the Adjustment Point; (vii) any income, excise, franchise or other taxes payable by Owner in respect of any period prior to the Adjustment Point; (viii) any other liabilities, obligations, debts, claims, causes of action, judgments or damages which may be imposed upon, incurred by or asserted against Owner in connection with the actions or omissions of Owner and which are based on any event occurring prior to the Closing (Date, claims of the Company's former employees whose employment terminated for any reason prior to or on the Closing Date, including, but not limited to, Owner's obligations under salaries, pensions or profit sharing benefits, wages, vacation and sick pay, other employee benefits, which are accrued as of the ATM Agreement open of business on the Date of Closing, as well as any severance pay payable by the Company to present and under that certain Release and Termination of Leasehold Agreement former employees, except to the extent such claim(s) has been explicitly assumed by and between WB Stage 16 and Owner, dated January 3, 2003)Purchaser in Section 3.1; (ixd) any liabilities claim, assessment, Liability and/or Encumbrances, penalties, interest, or obligations relating lien by any federal, state, county, local, or municipal governmental body for any taxes found to any property of Owner be due and owing, directly or indirectly, by the Sellers and/or the Company not explicitly assumed by Purchaser hereunder; (other than e) the Property or related property) or any activities of Owner (other than the ownership and operation of the Property and related property); and (x) any fine, penalty Business or ownership of the like that is imposed or assessed by a governmental authority for the period assets prior to the Closing Date, except to the extent such Loss has been explicitly assumed by the Purchaser hereunder, (f) all claims, demands, Liabilities and/or Encumbrances which may be asserted by creditors of and/or claimants against Seller, except to the extent that Purchaser has assumed such Liabilities under the provisions of Section 3.1 of this Agreement; (g) all claims, demands, Liabilities and/or Encumbrances that may be asserted against Purchaser or any of the Company's assets at any time or from time to time (excluding only any Liability explicitly assumed by Purchaser under the provisions of Section 3.1 of this Agreement) resulting from or arising out of the ownership, use, maintenance or operation of the Business by the Company with respect to any period of time prior to the Date of Closing; (h) any other Liability of or claims against Sellers and/or the Company of any kind, to the extent not specifically assumed by the Purchaser under the provisions of Section 3.1 of this Agreement; (i) any products sold or services provided by the Company in the operation of the Business prior to the Date of Closing, whether including, but not limited to, any warranty claims provided by the Company in connection with products it sells and/or services in its Business which are not specifically identified in Schedule Z; (j) and all costs of attorneys' fees, costs and expenses incurred by the Purchaser Indemnified Parties in defending any claim or not imposed or assessed before or after the Closing (the foregoing, collectivelyLiability, the "Excluded Liabilities")amount of any verdict or settlement, and attorneys' fees and costs incurred in enforcing this indemnification obligation against the Seller.