Indemnification by Seller. (a) Seller shall indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless from and shall reimburse the applicable Purchaser Indemnitee for any Losses suffered or incurred by any Purchaser Indemnitee after the Closing Date which result from:
(i) Any material breach of a representation or warranty by Seller, or non-fulfillment of any covenant or obligation of Seller, contained in this Agreement or the Assignment Agreement;
(ii) Any servicing act or omission of any prior servicer relating to any Mortgage Loan and any act or omission of any party related to the origination of any Mortgage Loan;
(iii) Any act, error or omission of Seller in servicing any of the Mortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by the Agency against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from the Agency or in a shortfall of funds to pay the Current Excess Servicing Spread;
(v) Any breach by Seller of the Asset Purchase Agreement; and
(vi) Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the items described in Section 11.01(a)(i) – (v) above;
01. Purchaser shall notify Seller promptly after receiving written notice of the assertion of any litigation, proceedings, governmental investigations, orders, injunctions, decrees or any third party claims subject to indemnification under this Agreement (each, a “Third Party Claim”). Upon receipt of such notice of a Third Party Claim, Seller shall have the right to assume the defense of such Third Party Claim using counsel of its choice reasonably satisfactory to the applicable Purchaser Indemnitee, but may not enter into any settlement without the prior written consent of the applicable Purchaser Indemnitee, which shall not be unreasonably withheld. A Purchaser Indemnitee shall have the right to select separate counsel and to otherwise separately defend itself at its own expense but shall not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld. Any exercise of such rights by a Purchaser Indemnitee shall not re...
Indemnification by Seller. Seller shall indemnify and hold harmless Purchaser and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:
(a) any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.
Indemnification by Seller. Buyer will be the purchaser of an overriding royalty interest in the Subject Interests and Buyer will not own any rights to conduct or direct operations thereon or any tangible property interest therein or any equipment located thereon, all such rights, tangible property interests and equipment being retained by either Seller. Buyer will not be responsible for the operation or condition of any such property. FROM AND AFTER THE CLOSING DATE, EACH SELLER SHALL JOINTLY AND SEVERALLY INDEMNIFY AND HOLD HARMLESS EACH BUYER PARTY, THEIR PRESENT AND FORMER DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, AND EACH OF THE HEIRS, EXECUTORS, SUCCESSORS, AND ASSIGNS OF ANY OF THE FOREGOING (COLLECTIVELY HEREIN REFERRED TO AS THE "INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL COVERED LIABILITIES. THE FOREGOING INDEMNITY SHALL APPLY WHETHER OR NOT THE COVERED LIABILITIES ARISE OUT OF THE SOLE, JOINT OR CONCURRENT NEGLIGENCE, FAULT OR STRICT LIABILITY OF ANY INDEMNIFIED PARTY OR ANY OTHER PERSON INDEMNIFIED HEREUNDER AND APPLIES, WITHOUT LIMITATION, TO ANY COVERED LIABILITY IMPOSED UPON ANY INDEMNIFIED PARTY AS A RESULT OF ANY LAW, THEORY OF STRICT LIABILITY OR OTHERWISE, EXCEPT TO THE EXTENT CAUSED BY AN INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Indemnification by Seller. (a) Except as specifically provided in this Section 8.2 and otherwise subject to this Article 8, Seller covenants and agrees to defend, indemnify and hold harmless the Company after the Closing and Purchaser and each of their respective officers, directors, employees, agents and Representatives (collectively, the “Indemnitees” and individually each an “Indemnitee”) from and against, and shall compensate and reimburse each of the Indemnitees for, any Damages which are suffered or incurred by any of the Indemnitees (regardless of whether or not such Damages relate to any third party claim) directly or indirectly arising or resulting from the following:
(i) any Breach of any representation or warranty made by Seller in this Agreement or any other Transactional Agreement;
(ii) any Breach of any covenant or obligation by the Company or Seller under this Agreement or any other Transactional Agreement;
(iii) any Excess Transaction Expenses;
(iv) (A) any and all unpaid Taxes which are imposed on, or with respect to (x) the Company or Seller for any Pre-Closing Period, and (y) the Transactions, including the Transfer Taxes as set forth in Section 7.6(c); (B) any Breach of any representation or warranty made by Seller in this Agreement or any other Transactional Agreement with respect to Taxes; and (C) any Breach of any covenant or obligation by the Company or Seller under this Agreement or any other Transactional Agreement with respect to Taxes (collectively, “Tax Matters”); or
(v) any of the Specified Indemnification Matters.
(b) Purchaser agrees that, in the event of a claim for indemnification for Damages pursuant to Section 8.2(a)(i)-(v), as an application of payments, Purchaser shall seek to pay and satisfy such claim first from the Holdback Amount, and second, if the Holdback Amount is insufficient to satisfy such claim, to pay and satisfy such claim with amounts recovered from Seller (for the avoidance of doubt, Purchaser may commence a claim against Seller under Section 8.2 and this application of payments provision shall be applicable to payment and satisfaction of such claim). For the avoidance of doubt, the right to satisfy claims from the Holdback Amount is not the exclusive remedy of Purchaser for amounts due pursuant to the terms of this Article 8 nor shall that amount be considered as liquidated damages for any Breach under this Agreement or any of the Transactional Agreements.
(c) Seller is not required to make any indemnification payment hereunder ...
Indemnification by Seller. Seller and its respective successors and permitted assigns will subsequent to the Closing jointly and severally indemnify and hold harmless Buyer, its Subsidiaries (including without limitation, TLP) and their affiliates and their respective officers, directors, employees and agents (individually, a "BUYER INDEMNIFIED PARTY" and collectively, the "BUYER INDEMNIFIED PARTIES") from and against and in respect of all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, orders, judgments, fines, penalties, costs and expenses (including the reasonable fees, disbursements and expenses of attorneys, accountants and consultants) of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) sustained, suffered or incurred by or made against (collectively "LOSSES" and individually a "LOSS") any Buyer Indemnified Party arising out of, based upon or in connection with:
(a) fraud or an intentional misrepresentation by Seller of any of its representations or warranties in this Agreement or in any Schedule, exhibit, certificate, financial statement, agreement or other instrument delivered under or in connection with this Agreement (including without limitation, the Occupancy Agreement, the License Agreement and the Services Agreement);
(b) any breach of any representation or warranty made by Seller in this Agreement or in any Schedule, exhibit, certificate, financial statement, agreement or other instrument delivered under or in connection with this Agreement (including without limitation, the Occupancy Agreement, the License Agreement and the Services Agreement);
(c) any breach of any covenant or agreement made by Seller in this Agreement or in any Schedule, exhibit, certificate, financial statement, agreement or other instrument delivered under or in connection with this Agreement (including without limitation, the Occupancy Agreement, the License Agreement and the Services Agreement);
(d) any liability relating to Seller's failure to comply with the provisions of any applicable bulk sales, fraudulent conveyance or other law for the protection of creditors;
(e) any liability of Seller or the Business other than the Assumed Liabilities;
(f) except for the Assumed TLP Liabilities, any and all liabilities of TLP of any kind or nature, known, unknown, accrued, absolute, contingent or otherwise, whether now exist...
Indemnification by Seller. Subject to the conditions and limitations on the indemnity rights of the Buyer Indemnitees contained in this Section 12, upon the terms and subject to the conditions of this Section 12, from and after the Closing, Seller shall indemnify, defend, save and hold harmless Buyer, and its subsidiaries, affiliates, successors and assigns and persons serving as officers, directors, partners, managers, members, employees and agents thereof (collectively, the “Buyer Indemnitees”), from and against any and all claims, losses, actions, costs, expenses and damages (including, without limitation, reasonably attorneys’ fees and including any third party claim against Buyer or its affiliates) (collectively, “Damages”) actually incurred by a Buyer Indemnitee arising out of, resulting from or in connection with any of the following matters:
(a) fraud, willful misconduct or willful breach by Seller of any of its covenants under this Agreement or in any certificate, schedule or exhibit delivered pursuant hereto;
(b) any failure to convey to Buyer at Closing title to the Purchased Assets free and clear of any Encumbrances (subject, however, to the qualifications and disclosures set forth in Schedule 7.4 of Seller’s Disclosure Letter);
(c) the Retained Liabilities (not otherwise covered under Section 12.2(g) or Section 12.2(f));
(d) the Excluded Assets;
(e) any breach (not otherwise covered under Section 12.2(a) above or Sections 12.2(f), 12.2(g), or 12.2(h), below) of any representation, warranty or covenant of Seller under this Agreement or in any schedule or exhibit delivered pursuant hereto;
(f) acts, conditions, events or omissions (whether known or unknown) relating to environmental laws or relating to hazardous substances, in each case, occurring or in existence prior to the Closing or relating to the inventory manufactured by Seller on behalf of Buyer pursuant to Section 5.4(b), except to the extent that Seller can establish that any such Damages are caused by or at the direction of a Buyer Indemnitee;
(g) any recall or other similar action of any inventory which is part of the Purchased Assets or is manufactured by Seller on behalf of Buyer pursuant to Section 5.4(b) that is made (i) based on a good faith determination that such action is necessary because such inventory is defective or hazardous and (ii) after commercially reasonable efforts to remedy the problem underlying such action have been taken; provided, however, that Seller shall not be obligated to indemnify...
Indemnification by Seller. Seller hereby agrees to indemnify Purchaser and its Affiliates and their respective officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless from, any Loss to the extent such Loss arises from or in connection with the following:
(i) any breach by Seller of any representation or warranty contained in this Agreement;
(ii) any breach by Seller of any of its covenants contained in this Agreement; or
(iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability.
Indemnification by Seller. (a) Seller hereby agrees to indemnify and hold Purchaser and its directors, officers, employees, Affiliates, stockholders, agents, attorneys, representatives, successors and permitted assigns (collectively, the “Purchaser Indemnified Parties”) harmless from and against any and all Damages to the extent based upon or resulting from or incurred in connection with:
(i) any breach of, or inaccuracy in, any representation or warranty made by Seller in this Agreement or in any document, schedule, instrument or certificate delivered hereunder or in respect of a claim made based upon alleged facts that if true could constitute any such breach or inaccuracy;
(ii) any breach or violation of any Pre-Closing Covenant or Post-Closing Covenant by Seller;
(iii) any Accounts Receivable set forth on Seller balance sheet as of the Closing Date which are not fully collected within one (1) year after the Closing Date, net of any applicable reserve for returns or doubtful accounts reflected thereon.
(iv) any Excluded Liability; and
(v) any pending litigation on or before the Closing Date related to the Business, the Purchased Assets, the Assumed Liabilities, or Subsidiary; In the event that Seller may be obligated to indemnify Purchaser Indemnified Parties under both subsections (i) or (ii) and any of subsections (iii)-(v) of this Section 10.2, Seller’s obligations under any of subsections (iii)-(v) shall be controlling and the limitations provided in Sections 10.1 shall not apply.
(b) Purchaser shall take and shall cause its Affiliates to take all reasonable steps to mitigate any Damages upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto.
(c) Seller shall have no liability (for indemnification or otherwise) with respect to claims under Sections 10.2(a), until the total of all Damages with respect to such matters exceeds Fifty Thousand Dollars ($50,000), and then for the total amount of Damages.
Indemnification by Seller. From and after the Closing, Seller shall indemnify Purchaser and its Affiliates and each of their respective officers, directors, employees, agents and representatives against and hold them harmless from any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) (“Losses”) suffered or incurred by any such indemnified party to the extent arising from (i) any breach of any representation or warranty of Seller contained in Sections 4.01, 4.02, 4.04 or 4.05 of this Agreement which survives the Closing, and (ii) any breach of any covenant of Seller contained in this Agreement requiring performance after the Closing Date. Notwithstanding the forgoing, (a) Seller shall not have any liability under clause (i) of this Section 9.01 unless the aggregate of all Losses for which Seller would be liable, but for this clause (a), exceeds on a cumulative basis an amount equal to $50,000.00, and then only to the extent of any such excess; (b) Seller shall not have any liability under clause (i) of this Section 9.01 for any individual item (or series of related items) where the Loss relating thereto is less than $10,000.00 and such` items shall not be aggregated for purposes of the foregoing clause (a) of this Section 9.01; (c) Seller shall not have any liability under clause (i) of this Section 9.01 for any breach of a representation or warranty if Purchaser had knowledge of such breach at the time of the Closing and such breach would have given rise to a failure to be satisfied of the condition to Purchaser’s obligations set forth in Section 3.01(a); (d) Seller’s liability under clause (i) of this Section 9.01 shall in no event exceed ten percent (10%) of the Base Purchase Price; and (e) Seller shall not have any liability under this Section 9.01 to the extent the liability or obligation arises as a result of (x) any action taken or omitted to be taken by Purchaser or any of its Affiliates or (y) any breach of a representation or warranty that is covered by a certificate delivered pursuant to Section 3.02(a) except to the extent Seller had knowledge that such representation or warranty was not true and correct in all material respects when made.
Indemnification by Seller. From and after the Closing Date, the Seller shall indemnify and hold the Purchaser and each of its Affiliates, directors, shareholders, officers and employees (collectively, the “Purchaser Group”), harmless from and against Losses imposed upon or incurred by any of them which arise out of:
(a) any misrepresentation or inaccuracy of a representation or warranty made by the Seller in this Agreement, pursuant to any certificate delivered by the Seller pursuant hereto or as may be made by the Seller in any Related Agreements;
(b) any breach or non-fulfillment of any covenant or agreement on the part of the Seller or its Affiliates in this Agreement or any Related Agreement to which it is a party, as the case may be;
(c) any (A) Liabilities for Successor Liability Taxes or any other Taxes with respect to any of the Transferred Assets or the Business, in each case related to a Tax period (or portion of any period) which ends, with respect to each Transferred Asset or the Business, on or before the earlier of (i) the date that such Transferred Asset or the Business is novated (if applicable), and (ii) the date that such Transferred Asset or the Business is treated by the Law imposing such Taxes as transferred from the Seller to the Purchaser, or (B) liability of the Seller for Transfer Taxes pursuant to Section 10.3(a); and
(d) the Excluded Assets, the Excluded Transactions and the Excluded Liabilities.
