By Purchaser. Purchaser hereby acknowledges that this Agreement is a contract to extend certain financial accommodations and is personal to Purchaser and Purchaser shall have no right to assign or otherwise Transfer this Agreement or any of its rights, benefits or obligations hereunder (including any representations and warranties included herein) without the prior written consent of Seller, which consent may be withheld, conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of any such assignment, Purchaser shall notify Seller in writing of any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be NULL AND VOID, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, duties, liabilities, representations and warranties of Purchaser under this Agreement and all agreements, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless from and against any Liabilities, including special and consequential damages, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's or such assignee's rights, benefits and obligations hereunder, in breach of the provisions hereof and such indemnification obligation shall be in addition to Seller's right to retain the Xxxxxxx Money and shall not be limited by any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled to recover from Purchaser under this Agreement, including the limitations in Section 7.1(a).
Appears in 1 contract
Samples: Agreement for Purchase and Sale (Resource America Inc)
By Purchaser. Purchaser hereby acknowledges that this Agreement is a contract to extend certain financial accommodations and is personal to Purchaser and Purchaser shall have no right to assign or otherwise Transfer this Agreement or any of its rights, benefits or obligations hereunder (including any representations and warranties included herein) without Effective upon the prior written consent of Seller, which consent may be withheld, conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser ownsRelease Parties do hereby remise, directly or indirectlyrelease, a majority acquit, waive, satisfy and forever discharge Seller Release Parties from any and all manner of the outstanding stock or other equity interestsdebts, provided thataccountings, as a condition precedent to the effectiveness of any such assignmentbonds, Purchaser shall notify Seller in writing of any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreementwarranties, in form and content satisfactory to Sellerrepresentations, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfercovenants, or attempted or purported assignment or other Transferpromises, by Purchaser of this Agreementcontracts, or any of its right and obligations hereundercontroversies, shall be NULL AND VOIDagreements, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenantsliabilities, obligations, dutiesexpenses, liabilitiesdamages, representations judgments, executions, objections, defenses, setoffs, actions, claims, demands and warranties causes of Purchaser under this Agreement and all agreementsaction of any nature whatsoever, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to exercise immediately any and all of its rights and remedies hereunder, whether at law or in equity. , whether known or unknown, either now accrued or hereafter maturing, which Purchaser hereby agrees Release Parties, or any of them, now or hereafter can, shall or may have by reason of any matter, cause or thing from the beginning of the world to indemnify, defend and hold including the Seller Parties harmless from and against any Liabilities, including special and consequential damagesdate of this Agreement, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee (i) the Property, and (ii) the sale of and management of the Property after the sale pursuant to the terms of this Agreement, and Purchaser Release Parties, jointly and severally, for themselves and all of their respective heirs, successors and assigns, hereby covenant and agree never to institute or cause to be instituted or continue prosecution of any suit or other form of action or proceeding of any kind or nature whatsoever against any of Purchaser's Seller Release Parties, by reason of or such assignee's rightsin connection with any of the foregoing matters, benefits claims or causes of action. The foregoing release and obligations hereundercovenant not to xxx shall not relate or apply to any of the covenants, agreements, representations or warranties of Seller set forth in this Agreement. Each of Purchaser Release Parties represents and warrants that (A) no Purchaser Release Party has assigned, in breach whole or in part, any of the provisions hereof claims, matters, or causes of action released herein; (B) this waiver and such indemnification obligation shall be release is voluntary and without any duress or undue influence, and is given as part of the consideration for this Agreement; (C) it may hereafter discover facts different from or in addition to Seller's right those, which it now believes to retain be true with respect to the Xxxxxxx Money foregoing release of claims; and (D) the foregoing release shall be and remain effective in all respects notwithstanding such different or additional facts. Each of Purchaser Release Parties expressly waives and assumes the risk of any and all claims, demand, obligations, or causes of action for damages arising out of any matter which may exist as of this date but which any of Purchaser Release Parties does not be limited by know or suspect to exist in their favor, for any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled reason, including ignorance, oversight, error, negligence, or otherwise, and which, if known, would or could affect their decision to recover from Purchaser under enter into this Agreement. Each of Purchaser Release Parties expressly waives all rights under Section 1542 of the Civil Code of the State of California and all other similar provisions of any statute or common law ruling of any other jurisdiction, including the limitations in Section 7.1(a)which Purchaser Release Parties understand provide or may be interpreted to provide as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Appears in 1 contract
By Purchaser. Purchaser hereby acknowledges that agrees to indemnify and hold harmless Seller and its affiliates, and their respective shareholders, directors, officers, employees, successors, assigns, and agents (the "Seller Indemnified Persons") from and against any and all claims, losses, damages, liabilities, expenses or costs ("Losses"), plus reasonable attorneys' fees and expenses incurred in connection with Losses and/or enforcement of this Agreement is a contract Agreement, incurred by Seller by reason of or arising out of or in connection with (i) the breach of any representation or warranty contained herein or in any certificate or other document delivered to extend certain financial accommodations and is personal Seller pursuant to the provisions of this Agreement, (ii) the failure of Purchaser and Purchaser shall have no right to assign or otherwise Transfer perform any act required under this Agreement or (iii) a claim by any third party with respect to any Liability, contract, other commitment or state of its rightsfacts which constitutes a breach of any representation or warranty contained in Section 7 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the provisions of this Agreement. Seller agrees to give prompt notice to Purchaser of any claim for which Seller seeks indemnification hereunder, benefits which notice shall include a reasonably detailed description of such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If any claim is brought against Seller for which indemnification is sought from Purchaser under this Section 11.2, then Seller shall control the contest, defense, settlement or obligations hereunder compromise of any such claim (including the engagement of counsel in connection therewith), at Purchaser's cost and expense, including the cost and expense of reasonable attorneys' fees in connection with such contest, defense, settlement or compromise, and Seller shall have the right to participate in the contest, defense, settlement or compromise of any representations such claim at its own cost and warranties included herein) expense, including the cost and expense of reasonable attorneys' fees in connection with such participation; PROVIDED, HOWEVER, that Seller shall not settle or compromise any such claim without the prior written consent of SellerPurchaser, which consent may shall not be withheldunreasonably withheld or delayed. If Purchaser fails to assume the defense of such claim within 30 days of receipt of notice of such claim, conditioned or delayed if at any time Purchaser shall fail to defend in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of good faith any such assignmentclaim, Purchaser Seller may assume the defense thereof and may employ counsel with respect thereto and all fees and expenses of such counsel shall notify be paid by Purchaser, and Seller may conduct and defend such claim in writing of such manner as it may deem 10 <PAGE> appropriate; PROVIDED, HOWEVER, that Seller shall not settle or compromise any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be NULL AND VOID, unless made with claim without the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, duties, liabilities, representations and warranties of Purchaser under this Agreement and all agreements, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless from and against any Liabilities, including special and consequential damages, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's or such assignee's rights, benefits and obligations hereunder, in breach of the provisions hereof and such indemnification obligation shall be in addition to Seller's right to retain the Xxxxxxx Money and which consent shall not be limited by any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled to recover from Purchaser under this Agreement, including the limitations in Section 7.1(a)unreasonably withheld or delayed.
Appears in 1 contract
By Purchaser. Purchaser hereby acknowledges that this Agreement is a contract to extend certain financial accommodations and is personal to Purchaser and Purchaser shall have no right to assign or otherwise Transfer this Agreement or any of its rights, benefits or obligations hereunder (including any representations and warranties included herein) without the prior written consent of Seller, which consent may be withheld, conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, If prior to Closing, to a Person Purchaser breaches in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of any such assignment, Purchaser shall notify Seller in writing of any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or ------------ material respect any of its right and obligations hereunder, shall be NULL AND VOID, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, dutiesliabilities or duties hereunder without such breach being cured within applicable notice and cure periods, liabilities, representations and warranties of Purchaser under this Agreement and all agreements, or in any documents and or certificates executed and delivered by any of the Purchaser or such permitted assignee Parties in connection herewith. Further, or if any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of Purchaser's representations and warranties prove to be false in any material respect as of the date deemed to be made, then Seller shall be entitled to elect one of the following options: (a) terminate its obligation to sell and Purchaser's obligation to purchase the Property and not proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent pursuant to the Xxxxxxx Money Trust Agreement and/or Purchaser, as applicable, and retain the Xxxxxxx Money as its sole and exclusive remedy and as liquidated damages for Purchaser's breach of this Agreement, any and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or (b) in the event Closing occurs, exercise the rights and remedies set forth in Section ------- 6.3. Further, in the event Seller elects not to proceed to Closing and receives --- and retains the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of its rightssuch breach by Purchaser would be impracticable or extremely difficult or impossible to determine, benefits Purchaser and Seller agree that the amount of the Xxxxxxx Money shall be the amount of damages to which Seller is entitled in such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt of the Xxxxxxx Money by Seller pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall constitute a material breach by Purchaser be deemed automatically terminated, and the parties shall have no further rights, obligations or liabilities hereunder, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby. If Purchaser hinders, delays, contests or interferes with Seller's receipt or retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then in any action brought thereon, the prevailing party shall be entitled to recover reasonable attorney's fees and shall entitle Seller expenses (whether incurred in connection with nonjudicial action, prior to exercise immediately any and all of its rights and remedies hereundertrial, at law trial or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless from and against any Liabilitieson appeal or review, including special and consequential damagesany proceedings under the Bankruptcy Code). If Seller is the prevailing party, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's or such assignee's rights, benefits and obligations hereunder, in breach of the provisions hereof and such indemnification obligation amounts shall be in addition to Seller's right retention of the Xxxxxxx Money, and if Purchaser is the prevailing party, such amounts shall be in addition to retain the return of the Xxxxxxx Money and shall not be limited by any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled to recover from Purchaser under this Agreement, including the limitations in Section 7.1(a)Seller.
Appears in 1 contract
Samples: Agreement for Purchase and Sale (Wells Real Estate Investment Trust Inc)
By Purchaser. Purchaser hereby acknowledges that In the event of a termination of this Agreement is a contract pursuant to extend certain financial accommodations Section 8.1(b) by Purchaser, this Agreement shall forthwith become void and is personal of no effect other than as otherwise provided herein and there shall be no liability on the part of any party hereto; provided that the Deposit with accrued interest thereon shall be returned to Purchaser (after notice and lapse of time as described below). If Purchaser has terminated this Agreement pursuant to the provisions of Section 8.1(b) (including the first and second provisos therein) because of a breach of a representation and warranty contained in Section 4.2 by Seller, Purchaser's sole remedy therefor shall be the return of the Deposit and accrued interest thereon. If Purchaser has terminated this Agreement because of a breach of a representation and warranty contained in Section 4.1 or of any obligation of Seller hereunder, Purchaser may pursue all its remedies provided in Section 9.2. Purchaser shall notify Seller that Purchaser has terminated this Agreement pursuant to Section 8.1(b) and specify the grounds for such termination, and Seller shall have five (5) days after receipt of such notice to notify Purchaser that it disputes such termination, such notice to state the grounds for such dispute. If Seller does not so notify Purchaser that a dispute exists and the grounds therefor within such five (5) day period, Seller shall pay the Deposit and accrued interest thereon to Purchaser. If Seller sends such a notice of dispute to Purchaser within the five (5) day period, Seller shall continue to hold the Deposit in accordance with this Agreement until such time as the dispute has been resolved. The Deposit and accrued interest thereon shall then be disbursed in accordance with the resolution of the dispute. The successful party shall be reimbursed for all expenses, including reasonable attorneys' fees, incurred in connection with any successful action brought under this Section 8.2(c). Purchaser shall have no right to assign Consequential Damages. In no event shall Purchaser have the right to offset amounts due it under this Section 8.2(c) or otherwise Transfer this Agreement under any other contract or agreement with Seller or any of its rights, benefits or obligations hereunder (including any representations and warranties included herein) without the prior written consent Affiliate of Seller, which consent may be withheld, conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of any such assignment, Purchaser shall notify Seller in writing of any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be NULL AND VOID, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, duties, liabilities, representations and warranties of Purchaser under this Agreement and all agreements, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless from and against any Liabilities, including special and consequential damages, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's or such assignee's rights, benefits and obligations hereunder, in breach of the provisions hereof and such indemnification obligation shall be in addition to Seller's right to retain the Xxxxxxx Money and shall not be limited by any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled to recover from Purchaser under this Agreement, including the limitations in Section 7.1(a).
Appears in 1 contract
By Purchaser. The Purchaser hereby acknowledges that this Agreement is a contract agrees to extend certain financial accommodations indemnify, to the extent permitted by law, the Vendor and is personal to Purchaser each person who participates as an underwriter in the offering or sale of the Consideration Shares, their respective directors, officers, employees and Purchaser shall have no right to assign agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against all losses (excluding loss of profits), claims, damages, liabilities and expenses arising out of or otherwise Transfer this Agreement based upon: (i) any information or statement contained in the preliminary prospectus, final prospectus, or any filing made in connection therewith or any amendment thereto which at the time and in light of its rightsthe circumstances under which it was made contains a misrepresentation; (ii) any order made or inquiry, benefits investigation or obligations hereunder proceedings commenced or threatened by any applicable Commission, court or other competent authority based upon any misrepresentation in the preliminary prospectus, the final prospectus, or any amendment thereto or based upon any failure to comply with applicable Securities Laws (including other than any representations failure to comply with applicable Securities Laws by the Vendor or the underwriter or underwriters); and warranties included herein(iii) non-compliance by the Purchaser with any of the Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of any of the foregoing insofar as (A) any information or statement referred to in clause (i) or (ii) of this subsection 8(e) has been furnished to the Purchaser by the Vendor or the underwriter or underwriters expressly for use therein; (B) caused by the Vendor or any underwriter’s failure to deliver to a purchaser of Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the completion of any sale in contravention of the Vendor’s obligation to obtain the Purchaser’s prior written approval; or (D) any amounts paid in settlement of any claim have been paid if such settlement is effected without the prior written consent of Sellerthe Purchaser, which consent may be withheld, conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of any such assignment, Purchaser shall notify Seller in writing of any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be NULL AND VOID, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, duties, liabilities, representations and warranties of Purchaser under this Agreement and all agreements, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless from and against any Liabilities, including special and consequential damages, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's or such assignee's rights, benefits and obligations hereunder, in breach of the provisions hereof and such indemnification obligation shall be in addition to Seller's right to retain the Xxxxxxx Money and shall not be limited by any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled to recover from Purchaser under this Agreement, including the limitations in Section 7.1(a)unreasonably withheld or delayed.
Appears in 1 contract
By Purchaser. Purchaser hereby acknowledges that Neither this Agreement is a contract to extend certain financial accommodations and is personal to Purchaser and Purchaser shall have no right to assign or otherwise Transfer this Agreement or nor any of its Purchaser’s rights, benefits interests or obligations hereunder (including Purchaser’s rights in respect of the Purchased Receivables) may be assigned, delegated or otherwise transferred, in whole or in part, by operation of Law, merger, change of control, or otherwise, by Purchaser without the prior written consent of Seller (such consent not to be unreasonably withheld, delayed or conditioned), and any representations such purported assignment, delegation or transfer without such consent shall be void ab initio and warranties included herein) of no effect; provided, however, that following the Closing, Purchaser may, upon [***] prior written notice to Seller, but without the prior written consent of Seller, which consent may be withheld, conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of any such assignment, Purchaser shall notify Seller in writing of any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be NULL AND VOID, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, duties, liabilities, representations and warranties of Purchaser under assign this Agreement and all agreements, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its Purchaser’s rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless from and against any Liabilities, including special and consequential damages, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's or such assignee's rights, benefits interests and obligations hereunder, in breach whole, to an Affiliate of Purchaser or to a fund that is exclusively managed by Purchaser or by its Affiliate (in each case, an “Affiliate Transferee”) if (i) such Affiliate Transferee agrees in a writing, in form and substance reasonably satisfactory to Seller, to perform all obligations under, and to be bound by all the provisions of, this Agreement (including Section 6.11 and each of the provisions hereof and other covenants set forth in Article VI that are applicable to Purchaser) as if such indemnification obligation shall be in addition to Seller's right to retain Affiliate Transferee were the Xxxxxxx Money and shall not be limited by any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled to recover from Purchaser “Purchaser” under this Agreement, (ii) such Affiliate Transferee agrees in a writing, in form and substance reasonably satisfactory to Seller and the Escrow Agent, to perform all obligations under, and to be bound by the provisions of, the Escrow Agreement as if such Affiliate Transferee were a “Purchaser” under the Escrow Agreement, (iii) such Affiliate Transferee’s creditworthiness (after giving effect to such assignment) is at least as favorable to Seller as that of Purchaser at the time of such assignment and (iv) such Affiliate Transferee represents and warrants to Seller that each of the representations and warranties set forth in Article V (including the limitations those set forth in Section 7.1(a5.10) are true and correct as of the date of such assignment as if such Affiliate Transferee were the “Purchaser” under this Agreement (with such modifications to Section 5.1 and the first sentence of Section 5.10 as are necessary to account for such Affiliate Transferee’s entity type and jurisdiction of organization (but, in any event, the first sentence of Section 5.10 shall confirm that such Affiliate Transferee is exempt from United States federal withholding tax on all payments with respect to the Purchased Receivables) and with such language giving effect to such modifications as shall be agreed to by Seller (such agreement of Seller not to be unreasonably withheld, delayed or conditioned)).
Appears in 1 contract
Samples: Royalty Purchase Agreement (Enanta Pharmaceuticals Inc)
By Purchaser. The Purchaser hereby acknowledges that this Agreement is a contract agrees to extend certain financial accommodations indemnify, to the extent permitted by law, the Vendors and is personal to Purchaser each person who participates as an underwriter in the offering or sale of the Consideration Shares, their respective directors, officers, employees and Purchaser shall have no right to assign agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against all losses (excluding loss of profits), claims, damages, liabilities and expenses arising out of or otherwise Transfer this Agreement based upon: (i) any information or statement contained in the preliminary prospectus, final prospectus, or any filing made in connection therewith or any amendment thereto which at the time and in light of its rightsthe circumstances under which it was made contains a misrepresentation; (ii) any order made or inquiry, benefits investigation or obligations hereunder proceedings commenced or threatened by any applicable Commission, court or other competent authority based upon any misrepresentation in the preliminary prospectus, the final prospectus, or any amendment thereto or based upon any failure to comply with applicable Securities Laws (including other than any representations failure to comply with applicable Securities Laws by the Vendors or the underwriter or underwriters); and warranties included herein(iii) non-compliance by the Purchaser with any of the Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of any of the foregoing insofar as (A) any information or statement referred to in clause (i) or (ii) of this subsection 9(e)(i) has been furnished to the Purchaser by the Vendors or the underwriter or underwriters expressly for use therein pursuant to subsection 9(d)(i); (B) caused by the Vendors or any underwriter’s failure to deliver to a purchaser of Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the completion of any sale in contravention of the Vendors’ obligation to obtain the Purchaser’s prior written approval; or (D) any amounts paid in settlement of any claim have been paid if such settlement is effected without the prior written consent of Sellerthe Purchaser, which consent may be withheld, conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of any such assignment, Purchaser shall notify Seller in writing of any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be NULL AND VOID, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, duties, liabilities, representations and warranties of Purchaser under this Agreement and all agreements, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless from and against any Liabilities, including special and consequential damages, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's or such assignee's rights, benefits and obligations hereunder, in breach of the provisions hereof and such indemnification obligation shall be in addition to Seller's right to retain the Xxxxxxx Money and shall not be limited by any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled to recover from Purchaser under this Agreement, including the limitations in Section 7.1(a)unreasonably withheld or delayed.
Appears in 1 contract
By Purchaser. Purchaser hereby acknowledges that agrees to indemnify and hold harmless Seller and its affiliates, and their respective shareholders, directors, officers, employees, successors, assigns, and agents (the “Seller Indemnified Persons”) from and against any and all claims, losses, damages, liabilities, expenses or costs (“Losses”), plus reasonable attorneys’ fees and expenses incurred in connection with Losses and/or enforcement of this Agreement is a contract Agreement, incurred by Seller by reason of or arising out of or in connection with (i) the breach of any representation or warranty contained herein or in any certificate or other document delivered to extend certain financial accommodations and is personal Seller pursuant to the provisions of this Agreement, (ii) the failure of Purchaser and Purchaser shall have no right to assign or otherwise Transfer perform any act required under this Agreement or (iii) a claim by any third party with respect to any Liability, contract, other commitment or state of its rightsfacts which constitutes a breach of any representation or warranty contained in Section 5 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the provisions of this Agreement. Seller agrees to give prompt notice to Purchaser of any claim for which Seller seeks indemnification hereunder, benefits which notice shall include a reasonably detailed description of such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If any claim is brought against Seller for which indemnification is sought from Purchaser under this Section 9.2, then Seller shall control the contest, defense, settlement or obligations hereunder compromise of any such claim (including the engagement of counsel in connection therewith), at Purchaser’s cost and expense, including the cost and expense of reasonable attorneys’ fees in connection with such contest, defense, settlement or compromise, and Seller shall have the right to participate in the contest, defense, settlement or compromise of any representations such claim at its own cost and warranties included herein) expense, including the cost and expense of reasonable attorneys’ fees in connection with such participation; provided, however, that Seller shall not settle or compromise any such claim without the prior written consent of SellerPurchaser, which consent may shall not be withheldunreasonably withheld or delayed. If Purchaser fails to assume the defense of such claim within 30 days of receipt of notice of such claim, conditioned or delayed if at any time Purchaser shall fail to defend in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of good faith any such assignmentclaim, Purchaser Seller may assume the defense thereof and may employ counsel with respect thereto and all fees and expenses of such counsel shall notify be paid by Purchaser, and Seller may conduct and defend such claim in writing of such manner as it may deem appropriate; provided, however, that Seller shall not settle or compromise any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be NULL AND VOID, unless made with claim without the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, duties, liabilities, representations and warranties of Purchaser under this Agreement and all agreements, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless from and against any Liabilities, including special and consequential damages, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's or such assignee's rights, benefits and obligations hereunder, in breach of the provisions hereof and such indemnification obligation shall be in addition to Seller's right to retain the Xxxxxxx Money and which consent shall not be limited by any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled to recover from Purchaser under this Agreement, including the limitations in Section 7.1(a)unreasonably withheld or delayed.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pressure Biosciences Inc)
By Purchaser. The Purchaser hereby acknowledges that this Agreement is a contract agrees to extend certain financial accommodations indemnify, to the extent permitted by law, the Vendor and is personal to Purchaser each person who participates as an underwriter in the offering or sale of the Consideration Shares, their respective directors, officers, employees and Purchaser shall have no right to assign agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against all losses (excluding loss of profits), claims, damages, liabilities and expenses arising out of or otherwise Transfer this Agreement based upon: (i) any information or statement contained in the preliminary prospectus, final prospectus, or any filing made in connection therewith or any amendment thereto which at the time and in light of its rightsthe circumstances under which it was made contains a misrepresentation; (ii) any order made or inquiry, benefits investigation or obligations hereunder proceedings commenced or threatened by any applicable Commission, court or other competent authority based upon any misrepresentation in the preliminary prospectus, the final prospectus, or any amendment thereto or based upon any failure to comply with applicable Securities Laws (including other than any representations failure to comply with applicable Securities Laws by the Vendor or the underwriter or underwriters); and warranties included herein(iii) non-compliance by the Purchaser with any of the Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of any of the foregoing insofar as (A) any information or statement referred to in clause (i) or (ii) of this subsection 9(e)(i) has been furnished to the Purchaser by the Vendor or the underwriter or underwriters expressly for use therein pursuant to subsection 9(d)(i); (B) caused by the Vendor or any underwriter’s failure to deliver to a purchaser of Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the completion of any sale in contravention of the Vendor’s obligation to obtain the Purchaser’s prior written approval; or (D) any amounts paid in settlement of any claim have been paid if such settlement is effected without the prior written consent of Sellerthe Purchaser, which consent may be withheld, conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of any such assignment, Purchaser shall notify Seller in writing of any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be NULL AND VOID, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, duties, liabilities, representations and warranties of Purchaser under this Agreement and all agreements, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless from and against any Liabilities, including special and consequential damages, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's or such assignee's rights, benefits and obligations hereunder, in breach of the provisions hereof and such indemnification obligation shall be in addition to Seller's right to retain the Xxxxxxx Money and shall not be limited by any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled to recover from Purchaser under this Agreement, including the limitations in Section 7.1(a)unreasonably withheld or delayed.
Appears in 1 contract
By Purchaser. Purchaser, subject to the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent arising by reason of or in connection with: (i) any breach of any representation or warranty of Purchaser hereby acknowledges that this Agreement is a contract to extend certain financial accommodations and is personal to Purchaser and Purchaser shall have no right to assign or otherwise Transfer in this Agreement or any of its rights, benefits or obligations hereunder the Related Agreements (including any representations all schedules and warranties included herein) without exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the prior written consent of SellerRelated Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which consent may shall be withheldgoverned by their respective terms), conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of any such assignment, Purchaser shall notify Seller in writing of any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be NULL AND VOID, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder Assumed Real Property Leases (from and after the assignment by Purchaser Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach of its interest hereunder to such assignee; providedany covenant, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, duties, liabilities, representations and warranties obligation or agreement of Purchaser under in this Agreement and all agreements, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its rightsthe Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, benefits documents, instruments and obligations hereunderundertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall constitute a material breach be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser of this Agreement arising from and shall entitle Seller after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless Purchaser’s Hired Employees arising from and against after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any Liabilitiesand all claims and liabilities for wages, including special bonuses, unpaid and consequential damagesaccrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer from and after the Closing Date; (vi) the Demised Premises by Purchaser and/or any permitted assignee of this Agreement, or any reason of Purchaser's failure to observe, perform or such assignee's rights, benefits and obligations hereunder, in breach comply with any of the provisions hereof obligations of “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and such indemnification obligation shall be in addition after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to Seller's right the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to retain matters arising after the Xxxxxxx Money and shall not be limited by any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled to recover from Purchaser under this Agreement, including the limitations in Section 7.1(a)Closing Date.
Appears in 1 contract
