Buyer’s Agreement to Indemnify. After the Closing Date, Buyer and SmarTalk shall jointly and severally indemnify, defend and hold harmless Seller, its officers, directors, employees and affiliates, and their successors and assigns (collectively, the "Buyer Indemnified Parties") against and in respect of any and all actual Losses regardless of whether any action has been filed or asserted against any Buyer Identified party arising from, in connection with or resulting from (a) any breach by Buyer or SmarTalk of representations and warranties contained in Section 5.4 hereof (such breach to be determined, in the case of those representations and warranties that are qualified by materiality, without regard to such qualification) or any breach by Buyer or SmarTalk of their covenants and agreements made in this Agreement that survive the Closing, provided that (w) Buyer and SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) only to the extent that the aggregate actual Losses (as adjusted pursuant to Section 9.6 hereof) to the Buyer Indemnified Parties arising from, in connection with or resulting from such breaches exceed Five Hundred Thousand Dollars ($500,000), (x) neither Buyer nor SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) in an aggregate amount in excess of Two Million Dollars ($2,000,000), (y) neither Buyer nor SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) for any breach of which the actual Losses (as adjusted pursuant to Section 9.6 hereof) arising from, in connection with or resulting from any individual case amount to Twenty-Five Thousand Dollars ($25,000) or less, and such Losses shall not be included in calculating the Five Hundred Thousand Dollar ($500,000) threshold established in the preceding subclause (w), and (z) any claim for indemnification under this clause (i) must be made in writing to Buyer and SmarTalk by Seller within one (1) year following the Closing Date; (b) the conduct of the Prepaid Phone Card Business from and after the Closing Date, except with respect to an Excluded Liability; (c) any Assumed Liability; and (d) any of the Assets (i) arising on or after Closing, (ii) arising from any contracts or agreements entered into by Buyer or SmarTalk or employees of Buyer or SmarTalk, or (iii) arising from or in any way related to the activities of Buyer or SmarTalk or the operation of their respective businesses.
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Samples: Asset Purchase Agreement (Smartalk Teleservices Inc)
Buyer’s Agreement to Indemnify. After the Closing Date, Buyer and SmarTalk shall jointly and severally indemnify, defend and hold harmless Seller, its officers, directors, employees and affiliates, and their successors and assigns (collectively, the "Buyer Indemnified Parties") against and in respect of any and all actual Losses regardless of whether any action has been filed or asserted against any Buyer Identified party arising from, in connection with or resulting from (a) any breach by Buyer or SmarTalk of representations Subject to the terms and warranties contained in Section 5.4 hereof (such breach to be determined, in the case of those representations and warranties that are qualified by materiality, without regard to such qualification) or any breach by Buyer or SmarTalk of their covenants and agreements made conditions set forth in this Agreement that survive the ClosingAgreement, provided that (w) Buyer and SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) only to the extent that the aggregate actual Losses (as adjusted pursuant to Section 9.6 hereof) to the Buyer Indemnified Parties arising from, in connection with or resulting from such breaches exceed Five Hundred Thousand Dollars ($500,000), (x) neither Buyer nor SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) in an aggregate amount in excess of Two Million Dollars ($2,000,000), (y) neither Buyer nor SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) for any breach of which the actual Losses (as adjusted pursuant to Section 9.6 hereof) arising from, in connection with or resulting from any individual case amount to Twenty-Five Thousand Dollars ($25,000) or less, and such Losses shall not be included in calculating the Five Hundred Thousand Dollar ($500,000) threshold established in the preceding subclause (w), and (z) any claim for indemnification under this clause (i) must be made in writing to Buyer and SmarTalk by Seller within one (1) year following the Closing Date; (b) the conduct of the Prepaid Phone Card Business from and after the Closing DateClosing, except Buyer shall indemnify and hold harmless Sellers (the “Seller Indemnitees”) from and against all liabilities, assessments, losses, damages, costs and expenses whether or not arising out of third party claims (including, without limitation, interest, penalties, reasonable attorneys’ fees and expenses and all reasonable amounts paid in investigation, defense or settlement of any of the foregoing) (collectively, but in all events excluding any punitive, special, incidental, consequential, diminution of value, lost profits, or like damages or claims, “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) a breach of any representation or warranty contained in this Agreement or any exhibits, schedules or certificates delivered by or on behalf of Buyer pursuant to this Agreement, or (ii) any breach of any of the covenants and agreements of Buyer contained in this Agreement (including those covenants and agreements set forth in the Environmental Remediation Agreement), including without limitation any agreement of Buyer to indemnify Sellers with respect to an Excluded Liability; (c) any Assumed Liability; and (d) any of the Assets (i) arising on or after Closing, (ii) arising from any contracts or agreements entered into by Buyer or SmarTalk or employees of Buyer or SmarTalk, or (iii) arising from or specific matters contained elsewhere in any way related this Agreement. Notwithstanding anything to the activities contrary contained in this Agreement, for purposes of determining whether Buyer is obligated to provide indemnification under Section 8.3(a)(i) of this Agreement and for purposes of determining the amount of any Seller Damages to which such indemnification applies, each representation and warranty in this Agreement and each certificate delivered pursuant hereto shall be read without regard and without giving effect to the term “material” or SmarTalk “material adverse effect” or similar phrases contained in such representation or warranty which has the operation effect of their respective businessesmaking such representation and warranty less restrictive (as if such word were deleted from such representation and warranty).
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Buyer’s Agreement to Indemnify. After Subject to the Closing Dateterms and conditions set forth herein, from and after the Closing, Buyer and SmarTalk shall jointly and severally indemnify, defend indemnify and hold harmless SellerSeller Group and their directors, its officers, directorsemployees, employees and affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the "Buyer Indemnified PartiesSeller Indemnitees") from and against all liability, demands, claims, actions or causes of action, assessments, penalties, fines, settlements, judgments, losses, damages, costs and in respect of any expenses (including, without limitation, reasonable attorneys' fees and all actual Losses regardless of whether any action has been filed or expenses) (collectively, "Seller Damages") asserted against or incurred by any Buyer Identified party Seller Indemnitee as a result of or arising from, in connection with or resulting from (a) any out of a breach by Buyer of any representation or SmarTalk of representations and warranties warranty contained in Section 5.4 hereof (such breach to be determinedArticle IV of this Agreement, in the case of those representations and warranties that are qualified by materialityeach case, without regard to such qualification) qualifications for materiality or any material adverse effect or a breach by Buyer of any agreement or SmarTalk covenant of their covenants and agreements made Buyer in this Agreement Agreement. Seller agrees that survive the Closing, indemnification provided that (w) in this Section 7.3 is the exclusive remedy for a breach by Buyer and SmarTalk shall be required to indemnify of the Buyer Indemnified Parties pursuant to this clause items listed in (i) and (ii) above of this paragraph. Buyer's obligations to indemnify Seller Indemnitees pursuant to Section 7.3(a)(i) hereof are subject to the following limitations: No indemnification shall be made by Buyer with respect to any claim (other than the right to indemnification for a breach of the representations under Sections 4.2, 4.3 and 4.12, which shall not be limited as to the amount of the claim or the time at which any claim may be brought under this Agreement) unless the aggregate amount of Seller Damages under all claims under this Article VII exceeds an amount equal to $500,000 and then only to the extent that the aggregate actual Losses (as adjusted pursuant to Section 9.6 hereof) to the Buyer Indemnified Parties arising from, in connection with or resulting from of such breaches Seller Damages exceed Five Hundred Thousand Dollars ($500,000), (x) neither . Buyer nor SmarTalk shall be required obligated to indemnify the Buyer Indemnified Parties pursuant Seller Indemnitees only for those claims giving rise to this clause (i) in an aggregate amount in excess of Two Million Dollars ($2,000,000), (y) neither Buyer nor SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) Seller Damages for any breach of which the actual Losses (as adjusted pursuant Seller Indemnitees have given Buyer written notice thereof prior to Section 9.6 hereof) arising from, in connection with or resulting from any individual case amount to Twenty-Five Thousand Dollars ($25,000) or less, and such Losses shall not be included in calculating the Five Hundred Thousand Dollar ($500,000) threshold established end of the applicable Indemnity Period in the preceding subclause (w), and (z) any claim for indemnification under this clause (i) must be made in writing event that an Indemnity Period applies to such Seller Damages. Any written notice delivered by a Seller Indemnitee to Buyer and SmarTalk by Seller within one (1) year following the Closing Date; (b) the conduct of the Prepaid Phone Card Business from and after the Closing Date, except with respect to an Excluded Liability; (c) any Assumed Liability; and (d) any Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the Assets (i) arising on or after Closingclaim for Seller Damages and, (ii) arising from any contracts or agreements entered into by Buyer or SmarTalk or employees of Buyer or SmarTalk, or (iii) arising from or in any way related to the activities extent reasonably practicable, a reasonable estimate of Buyer or SmarTalk or the operation of their respective businessesamount thereof.
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Samples: Purchase and Sale Agreement (Penn Virginia Resource Partners L P)
Buyer’s Agreement to Indemnify. After Buyer shall, in accordance with ------------------------------ the Closing Dateterms hereof, Buyer and SmarTalk shall jointly and severally indemnify, defend fully indemnify and hold harmless SellerSellers, its and if applicable, their respective subsidiaries and all of their Affiliates, officers, directorsdirectors employees, employees representatives and affiliates, and their successors and assigns (collectively, the "Buyer Indemnified Parties") agents against and in respect of any and all actual of Sellers' Losses regardless of whether any action has been filed or asserted against any Buyer Identified party arising from, in connection with or (i) resulting from (a) any misrepresentation or breach of warranty or the nonfulfillment of any agreement, covenant or obligation by Buyer or SmarTalk of representations and warranties contained in Section 5.4 hereof (such breach to be determined, in the case of those representations and warranties that are qualified by materiality, without regard to such qualification) or any breach by Buyer or SmarTalk of their covenants and agreements made in this Agreement that survive the Closing, provided that and (w) Buyer and SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) only to the extent that the aggregate actual Losses (as adjusted pursuant to Section 9.6 hereof) to the Buyer Indemnified Parties arising from, in connection with or resulting from such breaches exceed Five Hundred Thousand Dollars ($500,000), (x) neither Buyer nor SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) in an aggregate amount in excess of Two Million Dollars ($2,000,000), (y) neither Buyer nor SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) for any breach of which the actual Losses (as adjusted pursuant to Section 9.6 hereofii) arising fromout of the ownership, in connection with operation or resulting from any individual case amount to Twenty-Five Thousand Dollars ($25,000) or less, and such Losses shall not be included in calculating the Five Hundred Thousand Dollar ($500,000) threshold established in the preceding subclause (w), and (z) any claim for indemnification under this clause (i) must be made in writing to Buyer and SmarTalk by Seller within one (1) year following the Closing Date; (b) the conduct of the Prepaid Phone Card Business business of the Company or its subsidiaries from and after the Closing Date, except to the extent Buyer is entitled to be indemnified by Sellers hereunder with respect to any such Loss; provided, however, that the amount of any said -------- indemnification by Buyer hereunder shall be limited as follows: Buyer shall not be subject to liability under this Section 9(e) unless and until any and all of Sellers' Losses exceed $100,000 in the aggregate (in which case Buyer shall only be liable with respect to the excess over $100,000). It is expressly understood that Sellers' recourse against Buyer is limited and Sellers may only seek recourse against the Buyer for an Excluded Liability; amount equal to three million dollars (c$3,000,000). Sellers shall not be entitled to recover indemnification amounts under Section 9(e) hereof (A) unless any Assumed Liability; and Seller promptly asserts such claims by written notice to Buyer (dprovided, that failure of such Seller to give such notice shall not relieve the Buyer from any liability which it may have on account of this indemnification, except to the extent that the Buyer is materially prejudiced thereby) any specifying briefly the details of the Assets alleged misrepresentation or breach, (iB) arising on with respect to a misrepresentation or after breach of warranty or covenant or agreement by or of the Buyer which is contained herein if, at or before the time of Closing, any Seller had knowledge of the misrepresentation or breach of warranty or covenant or agreement , (iiC) arising to the extent a Loss for which indemnification is requested results from any contracts oral or agreements written agreement entered into by Buyer or SmarTalk or employees of Buyer or SmarTalk, or (iii) arising from or in any way related the Company prior to the activities Closing Date, which (1) relates to the period after the Closing Date, (2) was not disclosed to Buyer and (3) was known to Sellers on the date hereof to have constituted a breach of the representations and warranties hereunder without regard to materiality. Sellers further agree that in no event shall Sellers recover in the aggregate after taking into consideration insurance proceeds, if any, more than one hundred percent (100%) for any Loss incurred and to take all reasonable steps, as may be required by law, to mitigate the extent of any Loss. The amount of any recovery by Sellers pursuant to Section 9(e) shall be net of an federal, state, local and/or other income tax benefits inuring to the Sellers as a result of the state of facts which entitled Sellers to recover from Buyer or SmarTalk or the operation of their respective businessespursuant to Section 9(e).
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Buyer’s Agreement to Indemnify. After Upon the terms and subject to the conditions of this Article XI, from and after the Closing Date, Buyer and SmarTalk shall jointly and severally indemnify, defend and hold harmless Seller, its Affiliates and their respective officers, directors, and employees and affiliates, and their successors and assigns (collectively, the "Buyer “Seller Indemnified Parties") ”), from and against and in respect all Damages asserted against, resulting to, imposed upon or incurred by Seller Indemnified Parties by reason of any and all actual Losses regardless of whether any action has been filed or asserted against any Buyer Identified party arising from, in connection with or resulting from : (a) a breach of any breach by representation or warranty of Buyer or SmarTalk of representations and warranties contained in Section 5.4 hereof (such breach to be determined, in the case of those representations and warranties that are qualified by materiality, without regard to such qualification) or any breach by Buyer or SmarTalk of their covenants and agreements made in this Agreement that survive the Closing, provided that (w) Buyer and SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) only to the extent that the aggregate actual Losses (as adjusted pursuant to Section 9.6 hereof) to the Buyer Indemnified Parties arising from, in connection with or resulting from such breaches exceed Five Hundred Thousand Dollars ($500,000), (x) neither Buyer nor SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) in an aggregate amount in excess of Two Million Dollars ($2,000,000), (y) neither Buyer nor SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) for any breach of which the actual Losses (as adjusted pursuant to Section 9.6 hereof) arising from, in connection with or resulting from any individual case amount to Twenty-Five Thousand Dollars ($25,000) or less, and such Losses shall not be included in calculating the Five Hundred Thousand Dollar ($500,000) threshold established in the preceding subclause (w), and (z) any claim for indemnification under this clause (i) must be made in writing to Buyer and SmarTalk by Seller within one (1) year following the Closing Datecertificate delivered hereunder; (b) the conduct a breach of the Prepaid Phone Card Business from and after the Closing Date, except with respect to an Excluded Liabilityany covenant or agreement of Buyer contained in this Agreement or any certificate delivered hereunder; (c) any Assumed Liabilityliability or obligation of the Company, the Division Entities or the Division other than the Retained Litigation, Unrelated Liabilities, Pre-Closing Taxes, or any other liability for which Seller has agreed to indemnify Buyer or the existence of which is a breach of Seller’s representations and warranties under this Agreement; and (d) any of the Assets (i) arising on liability or after Closing, (ii) arising obligation resulting from any contracts or agreements entered into Guaranty made by Buyer or SmarTalk its Affiliates referred to in Section 2.5 hereof, to the extent arising or employees incurred after the Closing; (e) any liability or obligation resulting from any Guaranty referred to in Section 2.5 hereof for which Buyer shall not have caused itself or one of Buyer its Affiliates to be substituted in all respects for Seller, effective as of the Closing; (f) any liability for any Capitalized Lease Indebtedness or SmarTalkEarn-Out Indebtedness; (g) any Excess Restructuring Costs, or (iiih) arising from or in the costs of enforcing any way related to the activities of Buyer or SmarTalk or the operation of their respective businessesSeller Indemnified Party’s rights hereunder (collectively, “Seller Claims”).
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