Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with: (i) any breach or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and (ii) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby. (i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Purchase Agreement (Century Telephone Enterprises Inc)
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersEach Seller shall, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer Purchaser and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personseach of Purchaser's Affiliates, directors, officers, directors employees, attorneys, agents and representatives Representatives (individually, "Buyer Indemnitee" and collectively, the "Buyer IndemnitiesAffiliated Parties") from, and will pay to any Buyer Indemnitee the amount (net in 50 respect of any proceeds received by and all claims, losses, damages, liabilities, declines in value of the Buyer Indemnities from any form of insuranceassets, indemnity or other source of reimbursementpenalties, or other offsets or benefitsinterest, including tax benefitscosts and expenses, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interestreasonable attorneys', penalties, accountants' and the reasonable fees, disbursements and expenses of attorneys, accountants consultants' fees and other professional advisors) or diminution in value, whether or not involving a third-party claim expenses (collectively, "LossesDamages"), arisingincurred by Purchaser or Purchaser's Affiliated Parties, directly together with interest on cash disbursements in connection therewith, at an annual rate equal to the Prime Rate then in effect, from the date such cash disbursements were made by Purchaser or indirectly from or any of their respective Affiliated Parties until paid by such Seller, in connection with, or resulting from, any or all of the following:
(ia) any Any breach or violation inaccuracy of any representation or warranty made by such Seller in Article V of this Agreement or in any document, schedule, exhibit or other instrument relating hereto;
(b) Any misrepresentation contained in any written statement or certificate furnished by such Seller pursuant to this Agreement or the Transactions;
(c) Any failure to perform or comply with any covenant, agreement or obligation of such Seller contained in this Agreement as or any document or other instrument contemplated by this Agreement;
(d) Any injury to persons or death or property damage resulting from or contributed to by any products designed, manufactured, sold or leased by any of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant Sellers or any material services performed by any of the Sellers if the accident, incident or occurrence giving rise to such claim, action, lawsuit or proceeding occurred prior to the Closing Date; and
(e) With respect to any claim arising out of the failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability comply with the bulk transfer or bulk sales laws of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined jurisdiction in a manner consistent accordance with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇7.11.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Asset Purchase Agreement (Vdi Media)
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, Each Seller shall jointly and severally, shall on an after-tax basis severally indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personsAffiliates, stockholders, officers, directors directors, employees, agents, partners, representatives, successors and representatives assigns (individually, "Buyer Indemnitee" and collectively, the "Buyer IndemnitiesBUYER PARTIES") from, and will save and hold each of them harmless against and pay to any on behalf of or reimburse such Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, Parties as and when incurred for any loss, liability, demand, claim, judgmentaction, cause of action, cost, damage, cost deficiency, Tax, penalty, fine or expense expense, whether or not arising out of third-party claims (including, without limitation, including interest, penalties, and the reasonable fees, disbursements attorneys' fees and expenses and all amounts paid in investigation, defense or settlement of attorneys, accountants and other professional advisorsany of the foregoing) or diminution in value, whether or not involving a third-party claim (collectively, "LossesLOSSES"), arisingwhich any such Buyer Party may suffer, directly sustain or indirectly from or become subject to, as a result of, in connection with:
, relating or incidental to or by virtue of: (i) any breach by the Companies or violation any Seller of any representation or warranty of made by the Companies or any Seller contained in this Agreement as or any of the date such representation Schedules or warranty is made Exhibits attached hereto, or deemed made under Section 8.1 in any of the certificates furnished by the Companies or the Sellers at Closing pursuant to this Agreement; (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(bii) below) any nonfulfillment or a material breach of any covenant, agreement or covenant other provision by the Companies or any material failure Seller under this Agreement or any of the Schedules and Exhibits attached hereto; (iii) any action, demand, proceeding, investigation or claim by any Person against or affecting the Companies or any Buyer Party which relates to a breach of any of the representations, warranties, covenants or agreements of the Companies or any Seller to perform any of its obligations under this Agreement; and
(iiiv) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates Companies with respect to any Tax period year or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (Closing Date as determined in a manner consistent accordance with Section 78.11; (v) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital any obligation of the Alaska Entities as of August 31Companies at any time to pay any sale, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of stay or other change in control payment or bonus to any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
by this Agreement, including without limitation, any obligation to pay any sale, stay or other change in control payment or bonus to any employees of the Companies pursuant to the Sale of the Company Agreement (other than the Closing Bonuses); (vi) any services or work performed prior to the Closing in violation of any collective bargaining agreement or collective bargaining relationship to which the Companies or their Affiliates are a party or are otherwise bound, and for which a claim is filed or otherwise brought within two and one-half years after the Closing Date; (vii) any of the matters set forth on the INDEMNIFICATION SCHEDULE attached hereto; or (viii) 49% of any accounts receivable set forth on the Closing Balance Sheet that remains uncollected on the first anniversary of the Closing Date (it being understood that after the Buyer Parties receive indemnification payments with respect to such receivables, Buyer shall assign or cause to be assigned such receivables to the Sellers and the Sellers covenant to return to the Companies 51% of any collections on such receivables); PROVIDED THAT Sellers shall not have any liability under clause (i) After or clause (iii) above (except with respect to breaches of covenants and agreements) and (other than with respect to the date hereofrepresentations and warranties contained in Section 5.2 (Capital Stock and Related Matters; Title to Shares), Sellersthe first two and last sentences of Section 5.3 (Authorization; Noncontravention), jointly Section 5.20 (Tax Matters) and severallySection 5.21(Brokerage and Transaction Bonuses) unless the aggregate of all Losses relating thereto for which Sellers would, shall: but for this proviso, be liable exceeds on a cumulative basis an amount equal to $250,000 (Athe "DEDUCTIBLE") hold Buyer (and each Alaska Entity harmless from any Losses, incurred by then Sellers shall only be liable for all such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites Losses in compliance with applicable Environmental Lawsexcess of the Deductible); andand PROVIDED FURTHER that Sellers' aggregate liability under clause (i) and clause (iii) above (except with respect to breaches of covenants and agreements and other than with respect to the representations and warranties contained in Section 5.2 (Capital Stock and Related Matters; Title to Shares), the first two and last sentences of Section 5.3 (Authorization/Noncontravention), Section 5.20 (Tax Matters) and Section 5.21 (Brokerage and Transaction Bonuses) shall in no event exceed $12,250,000 (the "CAP")(with it being understood, however, that nothing in this Agreement (including this Section 8.2(a)) shall limit or restrict any of the Buyer Parties' rights to maintain or recover any amounts in connection with any action or claim based upon fraudulent misrepresentation or deceit). The Cap with respect to breaches by the Companies or any Seller of any representation or warranty in SECTION 5.16 (Environmental and Safety Matters) (other than with respect to those matters set forth on the Indemnification Schedule) shall decrease to $8,166,667 on the first anniversary of the Closing Date and decrease to $4,083,333 on the second anniversary of the Closing Date.
Appears in 1 contract
Indemnification by Sellers. Subject to the limitations in this Article VIII, if the Closing of the Transactions occurs, from and after Closing, each Seller (the “Indemnifying Seller”) will defend, indemnify, and hold Buyer and its respective officers, directors, agents, consultants, advisors, Representatives and equity holders (each of the foregoing being referred to individually as a “Buyer Indemnified Person” and collectively as “Buyer Indemnified Persons”) harmless from and reimburse Buyer (on behalf of Buyer Indemnified Persons), without duplication, for all documented and out-of-pocket costs or expenses (including without limitation, reasonable attorney’s fees), judgments, levies, losses, damages, fines, Liens, Taxes and penalties, except for any punitive, consequential, indirect or exemplary damages (except, in each case, to the extent reasonably foreseeable) or losses or damages on account of loss of future opportunities (collectively, “Losses”), incurred by Buyer Indemnified Persons arising out of, relating to or resulting from any of the following:
(a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth any inaccuracy in Section 6.2(d) hereof, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with:
(i) any breach or violation of any representation or warranty of Company or Sellers contained in Section 3.1 of this Agreement (as modified by the Company Disclosure Schedule);
(b) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by such Seller under this Agreement (other than as a direct result of the failure of Buyer to perform its agreements under this Agreement);
(c) any inaccuracy in or breach of any representation or warranty of such Seller contained in Section 3.3 of this Agreement (as modified by the Company Disclosure Schedule);
(d) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed on or prior to Closing by the date such representation or warranty is made or deemed made Company under Section 8.1 this Agreement (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or as a material breach direct result of any agreement or covenant or any material the failure of any Seller Buyer to perform any of its obligations agreements under this Agreement);
(e) any claims by (A) any then current or former holder or alleged then-current or former holder of any Company Securities, arising out of, resulting from or in connection with (I) the Transactions or this Agreement, or (II) such Persons status or alleged status as a holder of Company Securities at any time at or prior to the Closing, whether for breach of fiduciary duty or otherwise or (B) any Person to the effect that such Person is entitled to any Company Securities or any payment in connection with the Transactions by virtue of such Company Securities; and
(f) any Pre-Closing Taxes; provided, that (i) and in the case of Sections 8.1(a), (b), (c) or (d) above, without giving effect to any “materiality” limitations or references to “Company Material Adverse Effect” in determining Losses (but not in determining whether any breaches of representations and warranties have occurred); and (ii) each Seller shall only be liable to Buyer Indemnified Persons for indemnification under Sections 8.1(a), (d) and (e) above in proportion to such Seller’s Pro Rata Share of such Losses. Notwithstanding the foregoing, in no event shall any Losses resulting from Indemnifying Seller have any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates to a Buyer Indemnified Person with respect to any Tax period a breach of representation, warranty or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 covenant under this Agreement to the extent allocable (determined in a manner consistent with Section 7) to the portion that Buyer knew of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital breach as of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇Closing Date.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Stock Purchase Agreement (Renovaro Biosciences Inc.)
Indemnification by Sellers. (a) If the Closing occursExcept as provided in (b), subject to the terms each Seller, severally and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, jointly and severallynot jointly, shall on an after-tax basis indemnify and hold harmless Parent and Buyer and its Affiliates (including the Alaska Entities and, after the Closing) and their respective controlling personsClosing Date, officers, directors and representatives the Companies (individually, "Buyer Indemnitee" and collectively, "Parent and Buyer IndemnitiesIndemnitees") from), and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claimobligations, judgmentfines, damagepenalties, cost or expense (includingsettlements, without limitationdamages, claims, interest, penaltiesawards and judgments, costs and the expenses, including reasonable fees, disbursements attorneys' fees and other reasonable costs and expenses of attorneys, accountants and other professional advisors) investigating or diminution in value, whether or not involving a third-party claim contesting any of the foregoing (collectively, "Losses"), arisingsuffered or incurred by any of them for, directly or indirectly from arising out of or in connection with:
(i) any based upon, or relating to the breach or violation of any representation representation, warranty, agreement or warranty covenant of any such Seller contained in this Agreement as or any document or certificate of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained Seller referenced in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby1.4 relating thereto.
(ib) After ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (collectively, the date hereof, Sellers"Eitings"), jointly and severally, shall: (A) shall indemnify and hold harmless the Parent and Buyer Indemnitees from any Losses suffered or incurred by any of them for, or arising out of or based upon, or relating to the breach of any representation, warranty, agreement or covenant of any Company contained in this Agreement or any document or certificate of any Company referenced in Section 1.4 relating thereto. Without limiting the generality of the above indemnity, Eitings, jointly and severally, shall indemnify, defend and hold harmless Parent and Buyer and each Alaska Entity harmless their respective officers, directors, employees and agents, from and against, any Lossesand all funding and other costs, incurred by such entity including the fees for any attorney or consultant, to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on bring into compliance with its terms and applicable law any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites Employee Plan that is not in compliance with its terms and applicable Environmental Lawslaw as of the Closing Date, whenever such fees are incurred and whether or not it is known as of the Closing Date that the Employee Plan is not in compliance with its terms or applicable law or that the Employee Plan is not fully funded, including, but not limited to, any Losses in an aggregate amount of up to $200,000 (the "EP Cap") incurred as a result of (i) amendments to any Employee Plan that were not properly adopted, (ii) any late filings of Forms 5500 or other required reports and (iii) any prohibited transactions with respect to participant loans (the matters identified in clauses (i); and, (ii) and (iii) above being referred to herein, collectively, as the "Outstanding Employee Plan Matters"). ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ specifically acknowledge and agree that any Losses incurred by Buyer, Parent, Precision Strip or Transport in an aggregate amount not to exceed the EP Cap with respect to any Outstanding Employee Plan Matters shall not be subject to the limits set forth in Section 9.6.
(c) Except for amounts owed by any Seller for any Shortfall under Section 6.3 with respect to which Sellers shall pay Parent and Buyer directly unless Parent and Buyer elect to make a claim against the Holdback, Parent and Buyer shall, subject to the limitations set forth in Section 9.6 if applicable, submit all claims for indemnifiable Losses under this Section 9.2 to the Escrow Holder for payment from the Holdback in accordance with the Holdback Agreement.
Appears in 1 contract
Sources: Acquisition Agreement (Reliance Steel & Aluminum Co)
Indemnification by Sellers. (a) If Notwithstanding any term in this Agreement to the Closing occurscontrary, and subject to the terms limitation provided in the introductory language to Article III and conditions of this Section 6.27.4, including without limitation the limits on indemnity set forth in Section 6.2(d) hereofSellers shall indemnify, Sellersdefend, jointly and severally, shall on an after-tax basis indemnify save and hold harmless Buyer and its officers, directors, employees, agents and Affiliates (including the Alaska Entities including, after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and the Company; collectively, "Buyer IndemnitiesIndemnitees") fromharmless from and against all demands, claims, allegations, liabilities, costs and will pay to any Buyer Indemnitee the amount expenses (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitationreasonable legal fees, interest, penalties, and all reasonable amounts paid in investigation, defense or settlement of any of the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in valueforegoing, whether or not involving a third-party claim (the underlying demands, claims, allegations, etc., of third parties are meritorious; collectively, "LossesBuyer Damages")) asserted against, arisingimposed upon, resulting to, required to be paid by or incurred by any Buyer Indemnities, directly or indirectly from or indirectly, in connection with:
, arising out of, which could result in, or which would not have occurred but for, (i) any a breach or violation of any representation or warranty made by Sellers or the Company in this Agreement, in any certificate or document furnished pursuant hereto by Sellers or the Company or any Other Agreement to which Sellers or the Company, or any of them is or is to become a party, (ii) a breach or nonfulfillment of any covenant or agreement made by Seller contained or the Company in or pursuant to this Agreement as or in any Other Agreement to which Sellers or the Company, or any of them, is or is to become a party, (iii) any and all liabilities of the date such representation Company, whether due or warranty is made to become due, existing on the Closing Date or deemed made under Section 8.1 arising out of any transaction entered prior to the Closing Date, except for liabilities disclosed in writing to Buyer on or before Closing or fully reserved on the Final Closing Balance Sheet (other than those contained in Section 3.19 hereof, which are solely the liabilities covered by Section 6.2(b7.2(vi) belowhereof), (iv) noncompliance with or a violation of and any Buyer Damages with respect to Environmental Laws and related to events prior to the Closing, (v) any material breach of liability under any agreement warranty or covenant guarantee or other similar promise, or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellerscontract or agreement, the Alaska Entities and their Affiliates with respect to any Tax period given, issued, made or portion thereof ending entered into by Company on or before August 31Closing (except those disclosed in writing to Buyer on or before Closing), 1998 and/or (vi) any pending or for any Tax period beginning before and ending after August 31, 1998 threatened litigation disclosed as Item 1 on Schedule 3.12 to this Agreement. The foregoing to the extent allocable (determined in a manner consistent with Section 7) contrary notwithstanding the liability of Sellers hereunder shall be several and they shall contribute to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected indemnification pro rata based upon their respective equity ________ interests in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇Company.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Stock Purchase Agreement (United States Filter Corp)
Indemnification by Sellers. Subject to the limitations set forth in this Section 9, Sellers shall jointly and severally indemnify and hold Buyer and its officers, directors, employees, agents and affiliates (each, a “Buyer Indemnified Party” and together, the “Buyer Indemnified Parties”) harmless from and against, and shall reimburse the Buyer Indemnified Parties for, any and all losses, damages, debts, liabilities, obligations, judgments, orders, awards, writs, injunctions, decrees, fines, penalties, Taxes, costs or expenses (including, but not limited to, any reasonable legal or accounting fees or expenses) (“Losses”) arising out of:
(a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with:
(i) any breach or violation of any representation or warranty made by or on behalf of any Company or any Seller contained in this Agreement; provided that, in determining the existence of any breach of a representation and warranty for purposes of indemnification under this Section 9, no effect shall be given to any exception or qualification in such representation and warranty relating to materiality or a Company Material Adverse Effect;
(b) any breach by any Company or any Seller of any covenant or obligation in this Agreement or in any other Transaction Document;
(c) any litigation or administrative proceeding that is pending against any Company or any Seller as of the date such representation Closing Date; and
(d) any income or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered excise tax payable by Section 6.2(b) below) or a material breach of any agreement or covenant Company or any material failure Seller for any taxable period ending on or prior to the Closing Date, or any Losses arising out of or relating to the situation described in item 2 of Section 2.9 of the Company Disclosure Schedule. Sellers shall have no right of contribution from any Seller Company at any time with respect to perform any of its Sellers’ indemnification obligations under this Agreement; and
(ii) any Losses resulting from any liability , except after termination of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the this Agreement without consummation of the transactions contemplated herebypurchase and sale of the Interests.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occursSellers, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity limitations set forth in Section 6.2(d) hereofSections 3.26, Sellers3.28, 10.4, 10.5 and 11.8, jointly and severally, shall on an after-tax basis other than Rionach Ui Ogain, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇'▇▇▇▇▇, and ▇▇▇▇▇▇▇ Free Airport Development Company Limited, and other than ▇▇▇▇▇▇ ▇▇▇▇▇, who will severally but not jointly to the extent of consideration he has received, will indemnify and hold harmless Buyer and its Affiliates (including Buyer, the Alaska Entities after the Closing) Acquired Companies, and their respective Representatives, equity owners, controlling persons, officers, directors persons and representatives affiliates (individually, "Buyer Indemnitee" and collectively, the "Buyer IndemnitiesBUYER INDEMNITEES") fromfor, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insuranceIndemnitees the monetary value, indemnity or other source of reimbursementup to an amount equal to the Aggregate Purchase Price, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), Adverse Consequences arising, directly or indirectly indirectly, from or in connection with:
(ia) any breach or violation of any representation or warranty made by any Seller in this Agreement, the Disclosure Schedule and supplements thereto, the certificates delivered pursuant to Section 2.6(a)(viii), or any other certificate or document delivered by Sellers pursuant to this Agreement;
(b) any breach by a Seller of any covenant or obligation of such Seller contained in this Agreement as Agreement;
(c) any Liability of an Acquired Company existing at or arising out of a state of facts existing at or before the date Closing Date, to the extent that such representation Liability is not reflected or warranty is made reserved against in the Balance Sheet and Interim Balance Sheet, including Liabilities arising from or deemed made under Section 8.1 relating to:
(other than those contained in Section 3.19 hereofi) any product shipped or manufactured by, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; andservices provided by, an Acquired Company before the Closing Date;
(ii) any Losses resulting from environmental, health, and safety liabilities;
(iii) any liability risk or actual incidence of illness, disability, death or other injury to, or the contraction of any of the Alaska Entities (A) for any Taxes of Sellersdiseases by, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (including any current or former employee) resulting from exposure to hazardous materials, products, or other materials before the Closing Date, without regard to when such injuries or diseases are first manifested; and
(d) any matter disclosed in Part 3.23. Notwithstanding the foregoing, no Seller, other than any ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and ▇▇▇ ▇▇▇▇▇, shall be liable to indemnify Buyer under this Article 10 in an amount exceeding that portion of the Alaska Entities) Aggregate Purchase Price allocated to such Seller under Regthis Agreement. ssNotwithstanding the foregoing, indemnification for breach of any representation or warranty contained in Section 3.18 or for breach of any covenant or obligation contained in Article 11 is governed by Article 11. 1.1502-6 (or any similar provision Notwithstanding the foregoing, there shall be no limit to the amount of stateindemnity that shall be paid to the Buyer Indemnitees by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, local▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and ▇▇▇ ▇▇▇▇▇, for claims arising from fraud, willful concealment, dishonesty, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result breach of the consummation duty of the transactions contemplated herebyconfidentiality or deliberate non-disclosure, nor shall there be any limit as to time as to when an indemnity may be sought.
(ie) After the date hereofNotwithstanding any other provision of this Agreement, all Sellers, jointly including Rionach Ui Ogain, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ and severally▇▇▇▇▇▇ ▇'▇▇▇▇▇, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses▇▇▇▇▇▇▇ Free Airport Development Company Limited, incurred by such entity to remove or decommission shall be liable under the provision of Paragraph 3.3 in the event of breach of the warranty that Sellers are and will be on the Closing Date the record and beneficial owners and holders of the Shares, free and clear of all underground storage tanks identified encumbrances, set forth opposite their name on the Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andof Sellers.
Appears in 1 contract
Sources: Stock Purchase Agreement (Interwave Communications International LTD)
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersSellers shall, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer Purchaser and each of its Affiliates (including the Alaska Entities after the Closing) Subsidiaries and Affiliates, and each of their respective controlling personsdirect and indirect parent companies, officersmanagers, directors partners, members, managers, officers and representatives directors, and other Representatives (individually, individually "Buyer Purchaser Indemnitee" and or collectively, "Buyer Indemnities"the “Purchaser Indemnitees”) from and against all Damages incurred by such Purchaser arising from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with:
(ia) any failure by any Seller or Company to perform any of its covenants or other obligations contained in this Agreement;
(b) any breach or violation of any representation or warranty (A) made by any Seller in Article IV or (B) made by Company in Article III or any inaccuracy in or breach of any certificate or instrument delivered on behalf of any Seller contained or Company pursuant to this Agreement;
(c) any Recoupment Claim, Fraud Claim or Professional Malpractice Claim or negligence claim that is not expressly disclosed in the schedules to this Agreement as to any Seller; and
(d) any liability for Taxes of the date such Company, including but not limited to: (a) any loss attributable to any breach of or inaccuracy in any representation or warranty is by any Seller or Company made in this Agreement; (b) any loss attributable to any breach or deemed made under Section 8.1 (other than those contained in Section 3.19 hereofviolation of, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller or Company to fully perform any of its obligations under covenant, agreement, undertaking, or obligation in this Agreement; and
(iic) all Taxes (or the non-payment thereof) of the Company or relating to the Business for all Pre-Closing Tax Periods including the portion of a Straddle Period ending on the Closing Date; (d) any Losses resulting from any liability and all Taxes of any member of an affiliated, consolidated, combined, or unitary group of which the Company (or any predecessor of the Alaska Entities Company) is or was a member on or prior to the Closing Date by reason of a liability under Treasury Regulation Section 1.1502- 6 or any comparable provisions of foreign, state, or local Law; and (Ae) any and all Taxes of any person imposed on the Company arising under the principles of transferee or successor liability or by contract, relating to an event or transaction occurring before the Closing Date; in each of the above cases, together with any out-of-pocket fees and expenses (including attorneys' and accountants' fees) incurred in connection therewith. Sellers shall reimburse Purchaser for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect Company that are the responsibility of Sellers pursuant to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with this Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and8.2 within ten
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occursSellers shall, in accordance with and subject to the terms and conditions of limitations in this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersArticle VIII, jointly and severally, shall on an after-tax basis indemnify indemnify, defend, protect and hold harmless Buyer and its assigns, successors and Affiliates and the directors, officers and employees of each of Buyer and its assigns, successors and Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "the “Buyer Indemnities"Indemnitees”) from, against and will pay to in respect of all Actions asserted against, and all Damages asserted against or suffered, sustained, incurred or paid, directly or indirectly, by any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "“Buyer Losses"), arising, directly or indirectly from or ”) in connection withwith or arising out of:
(ia) any the breach or violation inaccuracy of any representation or warranty of any Seller contained set forth in this Agreement as of or any Seller Agreement;
(b) the date such representation breach or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach nonfulfillment of any agreement or covenant or agreement in this Agreement or any material failure Seller Agreement, or in any certificate delivered by Sellers hereunder, on the part of any Seller to perform any of its obligations under this Agreement; andSeller;
(iic) any Losses resulting from any liability Liability of any of Sellers and the Alaska Entities (A) Company for any unpaid Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof taxable periods ending on or before August 31the Closing Date and the portion through the end of the Closing Date for any taxable period that includes (but does not end on) the Closing Date (“Pre-Closing Tax Period”), 1998 any Liability of the Company for Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company (or for any Tax period beginning before and ending after August 31, 1998 predecessor of the Company) is or was a member on or prior to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31Closing Date, 1998) to the extent such Taxes are not reflected in the Net Working Capital any Liabilities of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) Company for the unpaid Taxes of any Person (other than any of imposed on the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), Company as a transferee or successor, by contractContract or pursuant to any Law which Taxes relate to an event or transaction occurring before the Closing Date, or otherwise and any breach of the representations in Section 4.9 hereof; or
(d) the enforcement of the indemnification provided for in this Agreement; provided, however, that with respect to subsections (a) and (Db) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19above, in either case as a if the Buyer Losses are the result of the consummation acts or omissions of, or the breach of any representation, warranty or covenant by, one or more but not all of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severallythen the indemnification obligations for such act, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred omission or breach shall be borne only by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Lawsthe responsible Seller(s); and.
Appears in 1 contract
Indemnification by Sellers. (a) If From and after the Closing occursClosing, subject to each of the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, jointly and severally, shall on an after-tax basis defend, reimburse, indemnify and hold harmless Buyer each of the Purchasers and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personsshareholders, directors, officers, directors employees and representatives agents, (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnitieseach such person being referred to as a (“seller Indemnified Party") against and in respect of;
(i) Any and all liabilities and obligations of any nature whatsoever, relating to NBS and/or the Business that accrue prior to the Closing and are not assumed by Purchasers in accordance with the terms of this Agreement.
(ii) Any and all actions, suits, claims, or legal, administrative, arbitration, governmental or other proceedings or investigations against any Seller Indemnified Party, including but not limited to claims made by any regulatory agency (each a "Proceeding"), to the extent that any such Proceeding pertains to any occurrence, action, inaction or transaction occurring prior to the Closing Date.
(iii) Any and all damages, losses, deficiencies, liabilities, costs and expenses incurred or suffered by any Seller Indemnified Party that result from, and will pay relate to or arise out or (A) any misrepresentation, breach of warranty or nonfulfillment of any agreement or covenant on the part of any of the Sellers under this Agreement or from any misrepresentation in or omission from any certificate, response to due diligence, schedule, statement, document or instrument furnished by any of the Sellers pursuant hereto or in connection with the negotiation, execution or performance of this Agreement or (B) the information set forth on Schedule 4.11(b) to the extent that such information pertains to any Buyer Indemnitee occurrence, action, inaction or transaction occurring prior to the amount Closing Date.
(net of iv) Any claim by any proceeds received by the Buyer Indemnities from any form of insuranceformer officer, indemnity or other source of reimbursementemployee, or creditor of the Business that pertains to any occurrence, action, inaction or transaction occurring prior to the Closing Date.
(v) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs and other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense expenses (including, without limitation, interestreasonable legal fees and expenses) incident to any of the foregoing or to the enforcement of this Section 7.1.
(vi) Any and an matters for which indemnification Is to be provided by ISG or any other "Seller" under the ISG Purchase Agreement.
(b) Notice must be given within a reasonable time after discovery of any fact or circumstance on which a Seller Indemnified Party could claim indemnification ("Claim" or "Claims"). The notice shall describe the nature of the Claim, penaltiesif the Claim is determinable, the amount of the Claim, or if not determinable, an estimate of the amount of the Claim. Each Seller Indemnified Party agrees to use its reasonable best efforts to minimize the amount of the loss or injury for which it is entitled to indemnification. The Sellers shall at all times have the primary obligation of defending any Claim and the reasonable fees, disbursements shall pay all costs and expenses of attorneys, accountants and other professional advisors) or diminution in value, ' fees associated therewith whether or not involving the action is brought directly against a third-party claim (collectivelySeller Indemnified Party. The Seller Indemnified Party shall have the right to select counsel to defend the Claim; provided that the identity of such counsel is acceptable to Sellers and Sellers do not unreasonably withhold their consent to such selection. Notwithstanding the foregoing, "Losses")each Seller Indemnified Party shall be entitled, arisingat its cost and expense, directly or indirectly from or in connection with:
(i) any breach or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any have counsel of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of own choosing assume the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion defense of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated herebyClaim against it.
(ic) After No Claim for which Indemnification is asserted shall be settled or compromised without the date hereofwritten consent of the Seller Indemnified Party, Sellersand such consent shall not be unreasonably withheld.
(d) A Claim shall be deemed finally resolved in the event a matter is submitted to a court, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred upon the entry of judgment by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); anda court of final authority.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Fusion Telecommunications International Inc)
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersEach Seller agrees, jointly and severally, shall on an after-tax basis to indemnify the Purchaser, and hold harmless Buyer and each of its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors directors, employees, equity holders, attorneys, agents and representatives (individually, "Buyer Indemnitee" Affiliates against and collectively, "Buyer Indemnities") agrees to hold each of them harmless from, any and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insuranceall damage, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liabilityLiability, expense, judgment, settlement, claim, judgment, damage, cost or expense penalty (including, without limitation, interest, penalties, and the including reasonable fees, disbursements and expenses of investigation and reasonable attorneys, accountants ' fees and other professional advisorsexpenses) or diminution in value, whether or not involving a third-party claim (collectively, "Losses")) incurred or suffered by the Purchaser or any of their respective officers, arisingdirectors, directly employees, equity holders, attorneys, agents or indirectly Affiliates, whether or not resulting from a third party claim, arising out of or in connection with:
relating to or resulting from, without duplication, (i1) any breach or violation of any a representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 in any certificate delivered by any Seller pursuant to this Agreement, (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b2) below) or a material any breach of any an agreement or covenant made by any Seller in this Agreement, (3) any inaccuracy in any certificate or instrument delivered by any material Seller to the Purchaser pursuant to this Agreement, (4) any Seller's use or operation of any Acquired Assets prior to the Closing, including any act or omission of any Seller, any of their respective officers, directors, employees, attorneys, agents or Affiliates relating thereto, (5) any failure of any Seller to perform Seller, or any of its obligations under this Agreement; and
(ii) their respective Affiliates to comply with any Losses resulting from any liability applicable "bulk sales" or similar Requirement of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates Law in connection with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
by this Agreement, or (6) Sellers' actions or omissions relating to any accounts and/or receivables which are not Eligible Accounts or Eligible Receivables. Notwithstanding the foregoing, the Purchaser and its Affiliates will not be entitled to indemnity pursuant to this Section 9.2 (i) After in respect of any individual Action or individual claim, fact or occurrence or any series of related Actions, claims, facts or occurrences (including any class action), until Losses in respect of such individual or related Actions, claims, facts or occurrences are greater on a cumulative basis than the date hereof, Sellers, jointly and severally, shall: Indemnity Deductible or (Aii) hold Buyer and each Alaska Entity harmless from for any Losses, until the aggregate amount of such Losses incurred or suffered by the Purchaser or any of its Affiliates exceeds on a cumulative basis the Indemnity Deductible, in which case the Purchaser and its Affiliates shall be entitled to indemnification for the full amount of such entity Losses in excess of such Indemnity Deductible; provided that in no event will Purchaser and its Affiliates be entitled to remove indemnity for Losses pursuant to this Section 9.2 to the extent that the amount of Losses, in the aggregate, incurred or decommission all underground storage tanks identified on Schedule 3.19 suffered by the Purchaser or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andof its Affiliates exceeds the Indemnity Cap.
Appears in 1 contract
Sources: Purchase, Sale and Servicing Transfer Agreement (Blair Corp)
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions limitations of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof9.5, Sellers, jointly and severallyagree to indemnify, shall on an after-tax basis indemnify defend and hold harmless Buyer and Buyer, its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors managers, employees, agents and representatives members (individually, "Buyer Indemnitee" and collectively, "the “Buyer Indemnities"Indemnified Parties”) from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, against any loss, liability, claim, judgmentdeficiency, damage, expense or cost or expense (including reasonable attorneys’ fees and expenses) including, without limitation, interestenvironmental damages, penaltiesresponse costs (including response costs under CERCLA or any comparable state, local or foreign law), remediation expenses and disbursements incurred by an Indemnified Party including, without limitation, any of the reasonable feesforegoing relating to, disbursements resulting from or arising out of any action, suit, administrative proceeding, investigation, defense, audit or other proceeding brought by any person or entity or Governmental Entity and expenses of attorneysany settlement or compromise thereof (collectively, accountants and other professional advisors) or diminution in value“Losses”), whether or not involving a third-party claim Claim (as defined in Section 9.4), which the Buyer Indemnified Parties may suffer, sustain or become subject to, as a result of any of the following (the items set forth in (a) through (f) below are hereinafter referred to, collectively, "Losses"), arising, directly or indirectly from or in connection with:as the “Indemnifiable Liabilities”):
(ia) Any misrepresentation in any breach or violation of any representation or warranty the representations and warranties of any Seller Sellers contained in this Agreement as of the date such representation or warranty is made in Sellers’ Disclosure Schedules;
(b) Any breach of, or deemed made under Section 8.1 (other than those contained in Section 3.19 hereoffailure to perform, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under Sellers contained in this Agreement; and;
(iic) any Losses resulting from any liability Any Claim or threatened Claim against the Buyer Indemnified Parties that arises in connection with the actions or inactions of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates Sellers with respect to any Tax period the Assets or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 the Business prior to the extent allocable Closing Date;
(determined in a manner consistent with Section 7d) to the portion Any liability of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) each Seller for the unpaid Taxes of any Person (person other than any of the Alaska Entities) either Seller under Reg. ss. Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, local or foreign law);
(e) With respect to each Plan that is subject to Title IV of ERISA, as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income the satisfaction of all minimum funding requirements under Reg. ss. 1.1502-19, in either case as a result Section 412 of the consummation Code with respect to each such Plan, and any liability under Title IV of the transactions contemplated hereby.ERISA with respect to each such Plan; or
(if) After the date hereof, Sellers, jointly and severally, shall: (A) hold Any Excluded Assets or any liability not specifically assumed by Buyer and each Alaska Entity harmless from any Losses, incurred by such entity pursuant to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andthis Agreement.
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions provisions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereofArticle VII, Sellers, jointly and severally, shall on an after-tax basis protect, indemnify and hold harmless Buyer Purchasers and its Affiliates Telscape, each officer, director and agent of Purchasers and each person who controls Purchasers in respect of any losses, claims, damages, liabilities, deficiencies, delinquencies, defaults, assessments, fees, penalties or related costs or expenses, including, but not limited to, court costs and reasonable attorneys', and accountants' fees and disbursements, and any Mexican federal, state or local income, value-added or withholding taxes payable in respect of the receipt of cash or money in discharge of the foregoing (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, collectively referred to herein as "Buyer Indemnitee" and collectively, "Buyer IndemnitiesDAMAGES") from, and will pay to any Buyer Indemnitee the amount (net which Purchasers or Telscape may become subject if such Damages arise out of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection withare based upon:
(ia) any the breach or violation of any representation of the representations and warranties, covenants or warranty of any Seller contained agreements made by Sellers or the Targets in this Agreement as Agreement, including the Exhibits and Schedules hereto, or in any certificate or instrument delivered by or on behalf of Sellers or the date such representation or warranty is made or deemed made under Section 8.1 Targets;
(b) other than those contained set forth in Section 3.19 hereofSchedule 2.13, which are solely covered by Section 6.2(b) below) any lawsuit, claim or a material breach proceeding of any agreement nature existing at or covenant prior to the Closing, or any material failure arising out of any Seller act or transaction of Sellers or the Targets, or arising out of facts or circumstances that existed at or prior to perform any the Closing that are related to the Targets, their respective assets or the operation of its obligations under this Agreementthe Integracion Business or the Lan Business; and
(iic) any Losses resulting from any liability of any of the Alaska Entities (A) liabilities for any Taxes of SellersTaxes, the Alaska Entities and their Affiliates with respect to any Tax period whether Mexican or portion thereof ending on United States federal, state or before August 31local taxes, 1998 (incurred or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, accrued by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case Sellers as a result of the consummation of the transactions contemplated hereby.
in this Agreement; The obligations by Sellers pursuant to Section 7.1 (ib) After herein to indemnify Purchasers and Telscape, among others, shall in no event exceed the date greater of USD $2,000,000.00 or the fair market value of the shares of Telscape underlying the Convertible Notes (333,000 shares of Telscape Common Stock) upon the exercise by Purchasers of its rights under Section 7.4 (e) hereof. Notwithstanding anything to the contrary contained in this Section 7.1, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from the Sellers shall be only severally liable for any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andDamages that may arise under Article V.
Appears in 1 contract
Sources: Stock Purchase Agreement (Telscape International Inc)
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions other provisions of this Section 6.2Article IX, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersSellers shall, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer Purchaser from and against any and all Losses suffered or incurred by Purchaser or its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives or employees or, following the Closing, by the Company, or its officers, directors or employees (individually, "Buyer Indemnitee" and collectively, the "Buyer IndemnitiesPurchaser Indemnified Parties"), in each case as a result of or arising out of:
(a) from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity The falsity or other source of reimbursementincorrectness of, or other offsets breach or benefits, including tax benefits, obtained) violation of, any lossrepresentation or warranty of Sellers or the Company in this Agreement or in any schedule or certificate furnished to Purchaser by or on behalf of Sellers or the Company pursuant to this Agreement;
(b) The failure by Sellers or the Company to perform any covenant or agreement of Sellers or the Company under this Agreement or under any schedule or certificate furnished to any Purchaser by or on behalf of Sellers or the Company pursuant to this Agreement;
(c) Any Liability or obligation arising out of or related to the failure of any Company Benefit Plan to comply with Law prior to the Closing, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and any Liability or obligation resulting from the reasonable fees, disbursements and expenses denial or loss of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or any Tax deduction taken by the Company in connection with:with any Company Benefit Plan;
(id) any breach Any charge, complaint, action, suit, arbitration, hearing, investigation, or violation other proceeding which has been disclosed in Section 3.14 of any the Disclosure Schedules hereto or, if not so disclosed, which should have been disclosed in Section 3.14 of the Disclosure Schedules hereto in order to make the representation or and warranty of any Seller contained in this Agreement Section 3.14 hereof true and correct as of the date such representation Closing Date, or warranty is made any guaranty or deemed made under Section 8.1 (other than those contained similar contingent obligation of the Company of the type described in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) 3.23 hereof for debts of the Sellers or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; andRelated Parties;
(iie) any Losses resulting All Taxes arising from any liability of any or pertaining to the Business, the assets, operations and distributions of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates Company with respect to any Tax period all periods or portion portions thereof ending on or before August prior to December 31, 1998 (1999, except those Taxes, properly accrued in accordance with GAAP but not yet due or for any Tax period beginning before and ending after August 31payable, 1998 to the extent allocable (determined in a manner consistent with Section 7) reflected as accrued expenses on the Financial Statement or those Taxes which have been properly and fully paid by the Company prior to the portion Closing Date.
(f) Any Liability or obligation of such period beginning before and ending on August 31, 1998) the Company for any Environmental Claims arising or relating to acts or omissions occurring prior to the extent Closing Date, regardless of whether such Taxes Environmental Claims are not reflected incurred in the Net Working Capital connection with any item which has been disclosed to Purchaser in Section 3.21 of the Alaska Entities as Disclosure Schedules or otherwise and regardless of August 31, 1998, (B) any Taxes payable whether such Environmental Claims have been incurred as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes a breach of or inaccuracy in any representation, warranty or covenant of any Person (other than any Seller or the Company hereunder and regardless of whether resulting from a condition which is known or unknown by the Alaska Entities) under Reg. ss. 1.1502-6 (Company or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After Seller on the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and.
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject to each of the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersSellers shall, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) each Business Subsidiary, Purchasers and their respective controlling personsgeneral partners, officerslimited partners, officers and directors of each of them (in each case, other than the Sellers), in respect of, and representatives (individuallyhold each of them harmless from and against any and all Losses suffered, "Buyer Indemnitee" and collectivelyincurred or sustained by any of them or to which any of them becomes subject, "Buyer Indemnities") whether or not involving a Third Party Claim, resulting from, arising out of or relating to (i) any breach of the representations and will pay to any Buyer Indemnitee warranties of the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense Sellers contained in this Agreement (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution any certificate delivered in value, whether or not involving a third-party claim (collectively, "Losses"connection herewith), arisingwithout regard to any materiality or Business Material Adverse Effect or, directly with respect to the representations and warranties contained in Section 4.11 or indirectly from the first sentence of Section 4.13 or the Tax-related representations set forth in connection with:
Annex B only, knowledge qualifications, (iii) any breach nonfulfillment of or violation failure to perform any covenant or agreement on the part of any representation or warranty of any Seller the Sellers contained in this Agreement as or any of the date such representation Operative Agreements (including, without limitation, any certificate delivered in connection herewith or warranty is made therewith), (iii) any failure to comply with any bulk sales or deemed made under Section 8.1 (similar Laws of any Governmental Authority other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) with respect to the Assumed Liabilities or a material breach to provide notice to or consult with or receive the consent of or seek the advice of any agreement work council or covenant union in France, (iv) Retained Liability and (vi) any vote, execution of consent or other action taken with respect to the preference shares of ARM South Africa without the prior consent of Purchaser, other than any material failure of actions taken to recover the unpaid purchase price and applicable dividend therefor pursuant to the buyback agreed to prior to the Closing; provided, (i) that if and to the 112 extent that any Seller indemnification under this Section 14.01(a) is unenforceable, but subject to perform any of its obligations the same terms, conditions, limitations and time periods applicable to such indemnification under this Agreement; and
, the Sellers shall make the maximum contribution to the payment and satisfaction of the indemnified Losses as shall be permissible under applicable Laws and (ii) in no event will Sellers be liable to provide any Losses resulting from any liability of any of the Alaska Entities (Aindemnification under this Section 14.01(a) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect as to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 matter to the extent allocable that Purchasers bear indemnification responsibility under Article XII hereof for such matter.
(determined in a manner consistent with Section 7b) to the portion No amounts of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes indemnity shall be payable as a result of the a claim under Section 338(h)(1014.01(a)(i) Election (as hereinafter defined)),(C) for the unpaid Taxes in respect of any Person a breach of a representation or warranty of Sellers (other than any of a claim based upon fraud or willful or criminal misconduct or, with respect to the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of stateDeductible but not the Covered Losses limitation, local, or foreign lawpursuant to the Seller Fundamental Representations), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless with respect to Losses arising from any single event or series of related events that do not exceed US$100,000 (“Covered Losses”), incurred by such entity and (ii) unless and until the Indemnified Parties have suffered, incurred, sustained or become subject to remove Losses (other than Covered Losses) with respect thereto in excess of US$6,200,000 (the “Deductible”) in the aggregate, in which case the Indemnified Parties shall be entitled to indemnification for the amount of Losses in excess the Deductible; provided, however, that the aggregate indemnification obligation of the Sellers in respect of claims (a) under Section 14.01(a)(i)(other than claims based upon fraud or decommission willful or criminal misconduct or pursuant to the Seller Fundamental Representations) shall be limited to US$31,000,000 and (b) under Section 14.01(a)(i) for all underground storage tanks identified on Schedule 3.19 claims (other than claims based upon fraud or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses willful misconduct) shall be limited to remediate such sites in compliance with applicable Environmental Laws); andthe Final Total Purchase Price.
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the other terms and conditions of this Section 6.2Article VII, including without limitation the limits each Seller shall severally and not jointly (based on indemnity set forth in Section 6.2(d) hereoftheir respective Payment Percentages), Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer the Purchaser Indemnitees from and its Affiliates (including the Alaska Entities after the Closing) against any and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received all Losses incurred or suffered by the Buyer Indemnities Purchaser Indemnitees, arising out of or resulting from any form (regardless of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a thirdsuch Losses relate to any Third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with:Party Claim):
(ia) any breach or violation the failure of any representation or warranty made by the Company or any of any Seller the Sellers contained in this Agreement as Agreement, or in any certificate or document delivered by the Company or any of the date such representation Sellers, to be true and correct;
(b) any breach by any of the Sellers of, or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material the failure of any of the Sellers to perform, any of the covenants and obligations required to be performed by any of the Sellers or the performance of any action otherwise prohibited under this Agreement (provided, however, that indemnification obligations arising from any failure of a Seller to perform any of its the covenants and obligations required to be performed by such Seller solely in his or her personal capacity or the performance in such Seller’s personal capacity of any action prohibited under this Agreement shall be the sole responsibility of such Seller and not any other Sellers);
(c) any Sellers’ Transaction Expenses or Outstanding Debt which have not been treated under Section 2.3 as a dollar-for-dollar reduction to the Purchase Price;
(d) (i) any Taxes of the Company relating to whole or partial taxable periods, activities, or events on or prior to the Closing Date, including the Taxes for which Sellers are responsible under Section 6.1, or (ii) any Transfer Taxes imposed on the sale of the Company or the Company Stock, including the making of, or as a result of, any Tax elections or the undertaking of any intermediate steps, actions, assignments, transfers, or transactions on or before the Closing other than the Section 338(h)(10) Election;
(e) any claim (i) for amounts paid by reason of an inaccuracy in the Flow of Funds to any of Sellers pursuant to this Agreement, or (ii) by any current or former holder or alleged current or former holder of any direct or indirect equity interest of the Company (including any predecessors), arising out of (x) the payment or allocation of the Purchase Price (as the case may be), or (y) such Person’s status or alleged status as an equity holder or owner of stock options or other direct or indirect equity interests in the Company (or any predecessor) at any time on or prior to the Closing;
(f) the amount, if any, by which the amount of Cash used in the calculation of the Initial Purchase Price is less than the amount of Cash actually delivered with the Company at Closing; and
(iig) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending those matters which are identified on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 Exhibit G to the extent allocable (determined in a manner consistent with Section 7) to the portion of factual basis for such period beginning matters arose before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇Closing.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Stock Purchase Agreement (Valens Semiconductor Ltd.)
Indemnification by Sellers. (a) If Effective only from and upon the Closing occursoccurrence of the Closing, and subject to Section 8.3 and Section 9.1 below, each of the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, Sellers hereby agrees to jointly and severallyseverally defend, shall on an after-tax basis indemnify and hold harmless Buyer Questron and its Affiliates (including the Alaska Entities after the Closing) Company and their respective controlling personssuccessors, officersassigns and affiliates (collectively, directors the "Questron Indemnitees") from and representatives against any and all losses, deficiencies, liabilities, damages, assessments, judgments, costs and expenses, including reasonable attorneys' fees (individuallyboth those 715586.5 -31- incurred in connection with the defense or prosecution of the indemnifiable claim and those incurred in connection with the enforcement of this provision), "Buyer Indemnitee" including, without limitation, Environmental Liabilities and Costs (collectively, "Buyer IndemnitiesQuestron Losses"), caused by, resulting from or arising out of:
(i) from, and will pay to any Buyer Indemnitee breaches of representation or warranty under this Agreement on the amount (net part of any proceeds received Seller; and (ii) failures by any of the Buyer Indemnities from Sellers to perform or otherwise fulfill any form of insurance, indemnity undertaking or other source of reimbursement, agreement or other offsets or benefits, including tax benefits, obtainedobligation under this Agreement;
(b) of, any loss, liability, claim, judgment, damage, cost or expense and all Taxes imposed on the Company (including, without limitation, interestTaxes relating to the Tax liability of Sellers to the extent any governmental authority seeks to impose such Taxes on the Company) for, penaltiesor relating to, all Pre-Closing Periods to the extent the charges, accruals and reserves therefor as reflected on the reasonable fees, disbursements and expenses books of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with:
(i) any breach or violation of any representation or warranty of any Seller contained in this Agreement the Company as of the date of the Closing are inadequate to cover such representation or warranty is made or deemed made under Section 8.1 Taxes;
(other than those contained in Section 3.19 hereofc) any liabilities of the Company arising out of the operations of the Company's business, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of facts, circumstances or events existing or occurring prior to the Closing Date, including, without limitation, any Seller product liability claim with respect to perform any of its obligations under this Agreementproducts, goods or services distributed or sold prior to the Closing Date; and
(iid) any Losses resulting from any liability of and all actions, suits, proceedings, claims, demands, incident to any of the Alaska Entities foregoing or such indemnification; provided, however, that if any claim, liability, demand, assessment, action, suit or proceeding shall be asserted in respect of which a Questron Indemnitee proposes to demand indemnification (A) for any Taxes of "Questron Indemnified Claims"), Questron or such other Questron Indemnitee shall promptly notify the Sellers thereof, provided further, however, that the failure to so notify the Sellers shall not reduce or affect Sellers, the Alaska Entities and their Affiliates ' obligations with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 thereto except to the extent allocable that Sellers are materially prejudiced thereby. Subject to rights of or duties to any insurer or other third Person having liability therefor, the Sellers shall have the right promptly upon receipt of such notice (determined in a manner consistent with Section 7after acknowledging responsibility for such Questron Indemnified Claim) to assume the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital control of the Alaska Entities as of August 31defense, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes compromise or settlement of any Person such Questron Indemnified Claims (other than provided that any of the Alaska Entities) under Reg. ss. 1.1502-6 (compromise or any similar provision of state, local, or foreign lawsettlement must be reasonably approved by Questron), as a transferee or successorincluding, by contractat its own expense, or otherwise and (D) for any Taxes attributable employment of counsel reasonably satisfactory to any deferred income attributable Questron; provided, however, that if the Sellers shall have exercised their right to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19assume such control, Questron may, in either case its sole discretion and at its expense, employ counsel to represent it (in addition to counsel employed by the Sellers) in any such matter. So long as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereofSellers are contesting any such Questron Indemnified Claim in good faith, Sellers, jointly and severally, shall: (A) hold Buyer Questron and each Alaska Entity harmless from other Questron Indemnitee shall not pay or settle any Losses, incurred by such entity Questron Indemnified Claim. Questron shall have the right to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on offset any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andQuestron Indemnified Claims and/or Questron Losses against the 1999 Deferred Purchase Price.
Appears in 1 contract
Indemnification by Sellers. Each Seller does hereby severally (a) If the Closing occurs, subject to the terms extent of his proportionate ownership of the Shares, and conditions of this Section 6.2not jointly, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) Parent, and their respective controlling personsAffiliates, directors, officers, directors employees and other agents and representatives (individuallyfrom and against any and all liabilities, "Buyer Indemnitee" and collectivelyjudgments, "Buyer Indemnities") fromclaims, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurancesettlements, indemnity or other source of reimbursementlosses, or other offsets or benefitsdamages, including tax benefitsfees, obtained) ofLiens, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interestTaxes, penalties, and the reasonable fees, disbursements obligations and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "“Losses")”) incurred or suffered by any such Person arising from, arising, directly or indirectly from by reason of or in connection with:
(ia) any misrepresentation or breach or violation of any representation representation, warranty or warranty agreement of any such Seller contained in this Agreement, any other Transaction Agreement as of or any certificate or other document delivered by such Seller hereunder or thereunder;
(b) the date non-fulfillment by such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach Seller of any agreement or covenant made by such Seller in this Agreement, any other Transaction Agreement or any material certificate or other document delivered by Sellers hereunder or thereunder;
(c) third party claims arising from, by reason of or in connection with the conduct of the business or other operations of Target prior to or on the Closing Date or third party claims arising from, by reason of or in connection with any condition relating to Target, its assets or operations and existing prior to or on the Closing Date;
(d) the failure of any such Seller to perform comply with any of its obligations under Federal, state or local tax laws applicable to the transactions contemplated by this Agreement; and
(iie) any Losses resulting from any liability of and all actions, suits, proceedings, demands, judgments, costs and legal and other expenses incident to any of the Alaska Entities matters referred to in clauses (Aa) through (d) of this Section 9.1; provided, however, that notwithstanding the foregoing, (X) Sellers will have no indemnification obligation in respect of any matter referred to in clause (a) above (other than for breach of any Taxes representation or warranty set forth in Sections 2.1, 2.2, 2.5, 2.14, 2.18, 2.29, 2.33, 2.34, 2.35 and 2.36) until the aggregate amount of Sellers, the Alaska Entities and their Affiliates all Losses with respect to any Tax period or portion thereof ending on or before August 31such matters exceeds $75,000 and then for the amount of all such Losses, 1998 (or for any Tax period beginning before Y) the liability of Sellers shall be joint and ending after August 31, 1998 several to the extent allocable (determined in a manner consistent with Section 7) extent, but only to the portion extent, that Buyer shall have the right to offset any Losses that are indemnifiable by either Seller hereunder against any Notes payable to any Seller and (Z) in no event shall the aggregate indemnification to be provided by Sellers in respect of such period beginning before and ending on August 31, 1998all matters referred to in clause (a) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person above (other than for breach of any representation or warranty set forth in Sections 2.1, 2.2, 2.5, 2.14, 2.18 and 2.29) exceed $5,000,000 for indemnification claims made by Buyer during the first year following the Closing Date and $2,500,000 thereafter. For purposes of clarity, the Alaska Entities) under Reg$2,500,000 limit on indemnification for the period following the first year is not in addition to the $5,000,000 limit for the first year, but is a reduction of such amount (i.e., for purposes of determining whether or not the indemnification limit of $2,500,000 is reached for purposes of indemnity claims asserted during the period following the first year, all indemnity claims asserted during the first year shall be included). ss. 1.1502-6 (Notwithstanding the foregoing or any similar other provision of statethis Agreement to the contrary, localin no event shall Sellers be liable to any party for any punitive damages, or foreign law), as a transferee any lost profits or successor, by contractlost revenues, or otherwise and (D) for any Taxes attributable to other consequential, incidental, special, or indirect damages of any deferred income attributable to any deferred income by Reg. ▇▇kind or nature under the indemnification provisions of this Agreement or otherwise.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occursSellers shall indemnify, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, jointly and severally, shall on an after-tax basis indemnify defend and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personsshareholders, officers, directors directors, employees, subsidiaries, agents, successors, and representatives affiliates (individually, hereinafter the "Buyer Indemnitee" and collectively, "Buyer IndemnitiesIndemnified Parties") from, against, and will pay to with respect to, any Buyer Indemnitee the amount and all loss, damage, claim, action, suit, proceeding (net of any proceeds received by the Buyer Indemnities from any form of insurancecivil or criminal), indemnity deficiency or other source of reimbursementexpense arising or resulting from, or other offsets or benefitsattributable to, including tax benefits, obtainedany of the following:
(a) of, any loss, liabilitydamage, claim, action, suit, proceeding, litigation, judgment, damagedecision, cost decree, injunction, or expense (includingruling affecting Sellers, without limitation, interest, penalties, and Buyer Indemnified Parties or the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly Transferred Business which results from or in connection with:the Excluded Liabilities.
(ib) any misrepresentation or breach or violation of any representation or warranty of Sellers made in Sections 6.08, 6.24, 6.28, 6.42, 6.43 and 6.46 contained herein or in any Seller contained in this Agreement as schedule related thereto;
(c) any misrepresentation or breach of the date such any representation or warranty is made of Sellers (excluding those representations or deemed made under Section 8.1 (other than those contained warranties referred to in Section 3.19 hereof13.01(b)) contained herein or in any report, which are solely covered schedule, agreement or document attached hereto, or any closing document delivered in connection with the transactions contemplated by Section 6.2(bsuch documents;
(d) below) any breach or a material breach default by Sellers of any agreement covenant, obligation or covenant undertaking on their part contained herein or in any report, schedule, agreement, or document attached hereto, or any material failure of any Seller to perform any of its obligations under this Agreement; andclosing document delivered in connection with the transactions contemplated by such documents;
(iie) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes all undisclosed or disclosed liabilities, debts, obligations and commitments of Sellers, fixed or contingent, known or unknown, arising from any statement of fact, occurrence or circumstance existing prior to or at the Alaska Entities Closing Date;
(f) any cost, expense or liability incurred by Buyer Indemnified Parties as a result of a claim for investment banker's fees, brokerage, transactional or similar fees by any person asserting it was engaged by Sellers or any of their affiliates;
(g) any reasonable and their Affiliates necessary out-of-pocket costs of any nature including without limitation, legal, accounting, fines, penalties, compliance costs, financial assurance requirements, capital equipment and maintenance costs, investigation and remediation costs, engineering, contractor, consultants, expert and other professional fees, resulting from or attributable to any matter or thing mentioned or described in clauses (a) through (f) above, and all such reasonable and necessary expenses incurred by Buyer Indemnified Parties in seeking enforcement against Sellers with respect to any Tax period matter or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andthing mentioned or
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, Each Seller jointly and severallyseverally covenants and agrees that such Seller will indemnify, shall on an after-tax basis indemnify defend, protect and hold harmless Buyer and its Affiliates (including the Alaska Entities officers, partners, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times from and after the Closing) date of this Agreement from and their respective controlling persons, officers, directors and representatives (individually, "against all Claims incurred by Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net as a result of any proceeds received by the Buyer Indemnities or arising from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with:
(i) any breach of the representations and warranties made by the Sellers set forth herein or violation on the schedules or certificates delivered in connection herewith, (ii) any nonfulfillment of any representation covenant or warranty agreement on the part of the Sellers under this Agreement, (iii) the business, operations or assets of the Sellers or the Hotels prior to the Closing Date, or (iv) any liability under the Securities Act, the Securities Exchange Act or other Law or regulation, at common law or otherwise, arising out of or based upon (1) any untrue statement or alleged untrue statement of a material fact relating to any Seller contained in this Agreement as of any preliminary prospectus, the date such representation registration statement filed in connection with the Newco IPO (the “Registration Statement”) or warranty is made any prospectus forming a part thereof, or deemed made any amendment thereof or supplement thereto (including any additional registration statement filed pursuant to Rule 462(b) under Section 8.1 (other than those contained in Section 3.19 hereofthe Securities Act), which are solely covered statement was provided or was based upon information or documents provided to Buyer or its counsel by Section 6.2(bthe Sellers or their counsel, or (2) below) any omission or alleged omission to state therein a material breach fact relating to the Sellers required to be stated therein or necessary to make the statements therein not misleading, which information was not provided to Buyer or its counsel by the Sellers or their counsel; provided, however, that such indemnity shall not inure to the benefit of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 Buyer to the extent allocable that such untrue statement (determined or alleged untrue statement) was made in, or such omission or alleged omission) occurred in, any preliminary prospectus and the Sellers provided, in a manner consistent with Section 7) writing, corrected information to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected Buyer or Newco for inclusion in the Net Working Capital of the Alaska Entities as of August 31final prospectus, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇such information was not so included.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If Each Seller hereby agrees that from and after the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellersit, jointly and severally, shall on an after-tax basis indemnify indemnify, defend and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) Buyers, their Affiliates, and their respective controlling personsdirectors, officers, directors shareholders, partners, members, attorneys, accountants, agents, Representatives and representatives employees and their heirs, successors and permitted assigns, each in their capacity as such (individually, "the “Buyer Indemnitee" and collectively, "Buyer Indemnities"Indemnified Parties”) from, against and will pay to any Buyer Indemnitee the amount (net in respect of any proceeds received by the Buyer Indemnities from any form of insurancedamages, indemnity or other source of reimbursementlosses, or other offsets or benefitscharges, including tax benefitsLiabilities, obtained) ofclaims, any lossdemands, liabilityactions, claimsuits, judgmentproceedings, damagepayments, cost or expense (includingjudgments, without limitationsettlements, assessments, deficiencies, taxes, interest, penalties, diminution of value and the reasonable feescosts and expenses (including removal costs, disbursements remediation costs, closure costs, fines, penalties and expenses of investigation and ongoing monitoring, attorneys, accountants ’ fees and other professional advisorsout of pocket disbursements) or diminution in value, whether or not involving a third-party claim (collectively, "“Losses")”) imposed on, arisingsustained, incurred or suffered by, or asserted against, any of the Buyer Indemnified Parties, whether in respect of third party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to or arising from or in connection with:
: (ia) except for any matter covered by another clause of this Section 6.2, any breach or violation inaccuracy of any representation or warranty of made by any Seller contained in this Agreement the Transaction Documents (it being understood that any qualification as to “materiality” (or similar words) or a “Material Adverse Effect” or “Knowledge” (or similar words) included in any such representation or warranty shall apply for purposes of determining whether there was an inaccuracy or breach of such representation or warranty, but shall be disregarded for purposes of computing any Loss in the date event such representation or warranty is made or deemed made under Section 8.1 determined to have been breached); (other than those contained in Section 3.19 hereof, which are solely b) except for any matter covered by another clause of this Section 6.2(b) below) or a material 6.2, any breach of any covenant, obligation or agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable including as a result of any action or inaction by any of its Affiliates) contained in the Section 338(h)(10) Election (as hereinafter defined)),(C) for Transaction Documents, including any Liability arising out of the unpaid Taxes ownership or operation of any Person the Transferred Assets prior to the Effective Time (other than the Assumed Liabilities); (c) any fraud, intentional misrepresentation or willful breach of any covenant, obligation or agreement of any Seller (including as a result of any action or inaction by any of its Affiliates) contained in the Transaction Documents; (d) any claims made by any Person alleging to own or have had a contractual or other right to acquire any equity or other ownership interests in any Seller or the Business or any or all of the Transferred Assets (other than sales of Seller Products in the Ordinary Course of Business) and any matters relating to Sellers’ title to the Business or any or all of the Transferred Assets to the extent relating to, arising from or in connection with circumstance, actions, events or conditions occurring or existing on or prior to the Closing Date; (e) any of the Alaska EntitiesExcluded Assets and/or the Excluded Liabilities; (f) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise Taxes for which Sellers are responsible in accordance with Section 5.1 and (D) for any Taxes attributable to any deferred income attributable inaccuracy or breach of any representation or warranty made in Section 3.9 or failure to comply with any deferred income Tax-related covenants of Seller set forth in this Agreement (it being understood that any qualification as to “materiality” (or similar words) or a “Material Adverse Effect” or “Knowledge” (or similar words) included in any such representation or warranty shall apply for purposes of determining whether there was an inaccuracy or breach of such representation or warranty, but shall be disregarded for purposes of computing any Loss in the event such representation or warranty is determined to have been breached); (g) any breach or inaccuracy of any representation or warranty made by Reg. ▇▇.▇▇. 1.1502-13 any Seller contained in Section 3.18(d) (it being understood that any qualification as to “materiality” (or similar words) or a “Material Adverse Effect” or “Knowledge” (or similar words) included in any such representation or warranty shall apply for purposes of determining whether there was an inaccuracy or breach of such representation or warranty, but shall be disregarded for purposes of computing any Loss in the event such representation or warranty is determined to have been breached), and 1.1502-14 any breach of any covenant, obligation or to agreement of any excess loss account taken into income under Reg. ss. 1.1502-19, in either case Seller (including as a result of any action or inaction by any of its Affiliates) set forth in Section 5.10 or contained in the consummation Transition Services Agreement relating to any Tooling, including the operation, repair, maintenance, implementation, transition or manufacture of the any Tooling, (h) any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with Sellers (or any Person acting on their behalf) in connection with any transactions contemplated hereby.
by this Agreement; (i) After any product or component thereof manufactured by or shipped, or any services provided by, any Seller, in whole or in part, prior to the date hereof, Sellers, jointly and severally, shall: Closing (Aother than any Assumed Liability); (j) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on Liability (other than any property owned, leased or otherwise operated Assumed Liability) caused by any Alaska Entity action of any Seller or any of its Affiliates on or prior to the Closing; (plus k) any Purchase Price Adjustment Amount owed to Buyers pursuant to Section 2.6; and (l) any and all associated expenses Liabilities in respect of any employees of Sellers that are not Employees and any and all Liabilities in respect of the Employees, including the Transferred Employees to remediate the extent that such sites in compliance with applicable Environmental Laws); andLiabilities arise from facts or circumstances occurring up to and including the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mad Catz Interactive Inc)
Indemnification by Sellers. (a) If Sellers and the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersShareholders individually, jointly and severally, shall on an after-tax basis severally agree to indemnify and hold harmless the Buyer from and against: (a) any and all liability for any claims based upon any state of facts in respect to any Seller, its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personsbusiness, properties, assets, or upon any acts or omissions of its employees, officers, directors directors, stockholders, agents or others acting on its behalf, in existence at or prior to the closing; (b) any and representatives all liabilities, damages and expenses resulting from any regulatory or legal actions or claims by any federal, state or local governmental agency or any suits, claims, actions of proceedings by others, if such regulatory or legal actions, suits, claims or proceedings are founded upon or arise by reason of events or operations of a Seller occurring or any state of facts in respect of a Seller's business; (individuallyc) any and all damage or deficiency resulting from any misrepresentation, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net breach of warranty or nonfulfillment of any proceeds received by condition or failure to perform any covenant or agreement on the Buyer Indemnities from any form part of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with:
(i) any breach or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made any other agreement or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, document to which are solely covered by Section 6.2(b) below) a Seller or a material breach Shareholder is a party contemplated hereby, or from any misrepresentation or omission from any exhibit, certificate or other instrument or copy thereof required to be furnished or furnished to the Buyer by the terms of this Agreement or any other agreement or covenant document to which a Seller or a Shareholder is a party contemplated hereby, or any material failure of any Seller to perform any of its obligations under this Agreementclaim which, if true, would constitute such a breach or misrepresentation; and
(iid) any Losses taxes, assessments, interest or penalties resulting from adjustments to any tax liability of a Seller or from a Seller's failure to pay in full its tax liability, for any period prior to the reporting period in which the closing occurs or in regard to the Closing, in respect to federal, state or local income, sales or other taxes, as well as withholding taxes and penalties for underpayment of withholding taxes and estimated taxes for any period, including the period in which the Closing Date occurs: (e) any liability of a Seller other than an Assumed Liability: (f) the costs of investigation, defense, legal fees, disbursements, costs of settling and discharging any and all judgments and or claims alleging or incident to the foregoing, regardless of the Alaska Entities (A) ultimate responsibility of a Seller for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect such liability to any Tax period or portion thereof ending on or before August 31, 1998 (or for claimant. Buyer shall have the right to offset any Tax period beginning before and ending after August 31, 1998 to claims hereunder against any sums due from the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable Buyer to any deferred income attributable to any deferred income by Reg. ▇▇party hereto.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Asset Purchase Agreement (Integrated Alarm Services Group Inc)
Indemnification by Sellers. Subject to the other terms, conditions and limitations set forth in this Article X, from and after the Closing, each Seller, severally not jointly (a) If provided, that the Closing occursforegoing shall not limit, subject and each Seller hereby waives any claim or defense that the foregoing would limit, Purchaser’s ability to receive the full amount of the Escrow Amount to which it is entitled pursuant to the terms and conditions of this Section 6.2Agreement and the Escrow Agreement; provided, including without limitation further that with respect to the limits on indemnity set forth in Section 6.2(d) hereof▇▇▇▇ ▇▇▇▇▇▇▇, jointly and severally as between the ▇▇▇▇ ▇▇▇▇▇▇▇, and with respect to the Ochstein Sellers, jointly and severallyseverally as between the Ochstein Sellers), shall on an after-tax basis indemnify indemnify, defend and hold the Purchaser Indemnified Parties harmless Buyer from and its Affiliates against (including the Alaska Entities after the Closingwithout duplication) any and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") all Losses resulting from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursementarising from, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection withwith respect to:
(a) (i) the breach of any of the representations or warranties (other than Seller Fundamental Representations) made by any Seller, any of the Holdcos, the Company or NewSouth Orlando in Article IV or Article V of this Agreement or any Seller Document or Company Document or (ii) the breach of any Seller Fundamental Representations made by such Seller, any of the Holdcos, the Company or NewSouth Orlando in Article IV or Article V of this Agreement;
(b) the breach or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller agreement to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of be performed by a Seller, any of the Alaska Entities (A) for any Taxes of SellersHoldcos, the Alaska Entities and their Affiliates Company or NewSouth Orlando (but only with respect to any Tax period member of the Company Group that relates to such breach or portion thereof ending violation on or before August 31prior to the Closing Date), 1998 pursuant to this Agreement, any Seller Document or Company Document;
(c) any Indemnified Taxes;
(d) any Transaction Expenses or for any Tax period beginning before and ending after August 31, 1998 Closing Indebtedness to the extent allocable not deducted from the Purchase Price pursuant to Section 2.2 or Section 2.3;
(determined in a manner consistent e) any claims by ▇▇▇▇▇▇▇ ▇▇▇▇▇ with Section 7) respect to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital Redemption Agreement or any matter related thereto or his ownership of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.Orlando Membership Interests; or
(if) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and[***]
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (PGT Innovations, Inc.)
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellerseach Seller will, jointly severally and severallynot jointly, shall on an after-tax basis indemnify indemnify, defend and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") Purchaser Indemnified Parties from, against, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) in respect of, any loss, liability, claim, judgment, damage, cost and all Losses arising out of or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection withrelating to:
(i) any breach or violation inaccuracy of any representation or warranty of any a Seller contained in this Agreement as of the date Fundamental Representation by such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; andSeller;
(ii) any Losses resulting from any liability breach of any covenant, agreement or undertaking made by such Seller in this Agreement (other than any covenant, agreement or undertaking in respect of Taxes, the Alaska Entities subject of which is set forth in Section 8.2(a)(iii) and Section 8.2(b)(i)); and
(Aiii) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or such Seller for any Tax period beginning before and ending after August 31, 1998 period.
(b) Subject to the extent allocable terms hereof, the ▇▇▇▇▇ Seller will indemnify, defend and hold harmless Purchaser Indemnified Parties from, against, and in respect of, any and all Losses arising out of or relating to:
(determined in a manner consistent with Section 7i) to the portion of such period beginning before and ending on August 31all Pre-Closing Taxes, 1998) except to the extent such Taxes are not were reflected in as a current liability on the Net Working Capital Final Closing Statement;
(ii) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Transferred Company (or any predecessor of the Alaska Entities as Transferred Company) is or was a member (other than another Transferred Company) on or prior to the Closing Date by reason of August 31a liability under Treasury Regulation Section 1.1502-6 or any comparable provisions of state, 1998, local or non-U.S. Law;
(Biii) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid and all Taxes of any Person (other than a Transferred Company) imposed on the Transferred Company arising under the principles of transferee or successor liability or by Contract or operation of Law, arising from or relating to transactions or other events which occurred on or prior to the Closing and (iii) Sellers’ share of any Transfer Taxes under Section 7.6. In no event shall each Seller’s aggregate liability arising out of or relating to Section 8.2(a)(i) and Section 8.2(a)(ii) exceed its pro rata portion (according to the percentage of the Alaska EntitiesEquity Securities of the Company it owns) under Regof $250,000 (the “Cap”). ssFor the avoidance of doubt, the Cap shall not apply to Section 8.2(a)(iii) and Section 8.2(b). 1.1502-6 (or any similar provision Further, for the avoidance of statedoubt, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) the ▇▇▇▇▇ Seller shall not be responsible for any Taxes attributable to breach by the Minority Seller of the Seller Fundamental Representations or covenants made by the Minority Seller hereunder and the Minority Seller shall not be responsible for any deferred income attributable to any deferred income breach by Reg. the ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result ▇ Seller of the consummation of Seller Fundamental Representations or covenants made by the transactions contemplated hereby▇▇▇▇▇ Seller hereunder.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Membership Interest Assignment Agreement (Forian Inc.)
Indemnification by Sellers. Subject to Sections 8.1 and 8.4, after the Closing, (ax) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, other than any Designated Seller, shall (severally, and not jointly, with respect to Article III, and otherwise jointly and severally) and (y) the Designated Sellers shall, severally and not jointly (and notwithstanding that any such Designated Seller shall on an after-tax basis not make or give any of the representations or warranties in Article IV, as provided in Section 9.18), protect, defend, indemnify and hold harmless Buyer each of the Freedom Indemnified Parties, from and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), against all Damages arising, directly or indirectly indirectly, from or in connection with:
(ia) any breach or violation of any representation or warranty made in Article III or Article IV of this Agreement (excluding any breach of any representation or warranty made in Article III or Article IV of this Agreement with respect to income Taxes (as to which see Section 8.2(d) below)); provided that any indemnification obligation hereunder for any breach of any representation or warranty made in Article III shall be solely and exclusively the obligation of a Seller that breaches any such representation or warranty and no other Seller shall have any liability (joint, several or otherwise) with respect thereto;
(b) any breach of any covenant, agreement or other obligation of the Sellers contained in this Agreement or in any other Transaction Document (excluding any breach of any covenant, agreement or other obligation of the Sellers contained in this Agreement or in any other Transaction Document with respect to income Taxes (as to which see Section 8.2(d) below));
(c) the investigation referred to in the Proxy Statement under the heading “Legal and Regulatory Proceedings—Vivendi”; provided, that for purposes of this Section 8.2(c), Damages shall mean solely judgments, fines, penalties, and amounts paid in settlement and shall not include costs of investigation and defense, fees and expenses of legal counsel, accountants and other professional advisors or other Damages of any kind;
(d) all income Taxes of the Companies for all taxable periods (or portions thereof) ending on or before the Closing Date in excess of the amount of income Taxes included on the Closing Net Cash Statement; provided, however, that the Sellers shall not be liable under this Section 8.2(d) unless and until the aggregate amount of claims for which the Sellers would otherwise be liable under this Section 8.2(d) exceeds $15,000,000 (for the avoidance of doubt, once the aggregate amount of claims exceeds $15,000,000, the Sellers shall be liable for the entire amount of such claims (subject to Section 8.4), including all of the first $15,000,000). In the case of a taxable period that includes (but does not end on) the Closing Date, the amount of income Taxes for the portion of the taxable period ending on the Closing Date shall be determined based on an interim closing of the books as of the date close of business on the Closing Date;
(e) any breach of any Laws relating to financial services in consequence of the issue or transfer of partnership interests of GLG Partners LP to Albacrest or Laurel Heights; provided, however, that the Sellers shall not be liable under this Section 8.2(e) unless and until the aggregate amount of claims for which the Sellers would otherwise be liable under this Section 8.2(e) exceeds $15,000,000 (for the avoidance of doubt, once the aggregate amount of claims exceeds $15,000,000, the Sellers shall be liable for the entire amount of such representation or warranty is made or deemed made under Section 8.1 claims, including all of the first $15,000,000);
(other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(bi) below) or a material breach the continuing existence after the Closing Date of any agreement or covenant arrangement existing at any time prior to the date hereof between and among the shareholders of any of GLG Partners Limited, GLG Holdings Limited, GLG Partners Services Limited, GLG Partners (Cayman) Limited or GLG Partners Asset Management Limited and relating to such companies or any material failure of any Seller their Subsidiaries to perform any of its obligations under this Agreement; and
which such agreements apply or (ii) the termination after the Closing Date of any Losses resulting from such agreement or arrangement with any liability of the Companies; provided, however, that the Sellers shall not be liable under this Section 8.2(f) unless and until the aggregate amount of claims for which the Sellers would otherwise be liable under this Section 8.2(f) exceeds $15,000,000 (for the avoidance of doubt, once the aggregate amount of claims exceeds $15,000,000, the Sellers shall be liable for the entire amount of such claims, including all of the first $15,000,000); provided further, that a Seller shall not be liable under this Section 8.2(f) with respect to any such agreement or arrangement to which it was not a party; or
(g) the existence on or after the Closing Date of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect shares referred to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇6.17.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Purchase Agreement (Freedom Acquisition Holdings, Inc.)
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms Sections 8.2(b) and conditions (c) of this Section 6.2Agreement, including without limitation each Seller --------------- --- agrees to and shall, severally and not jointly, indemnify the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer Purchaser and its Affiliates (including subsidiaries and the Alaska Entities after the Closing) Corporation and their respective controlling persons, officers, directors directors, employees, shareholders, representatives and representatives agents (individually, "Buyer Indemnitee" and collectively, the "Buyer IndemnitiesPurchaser Parties") fromand hold each of them harmless at ----------------- all times after the date of this Agreement, against and will pay to any Buyer Indemnitee the amount (net in respect of any proceeds received by the Buyer Indemnities from any form of insuranceand all damage, indemnity or other source of reimbursementloss, or other offsets or benefits, including tax benefits, obtained) of, any lossdeficiency, liability, claimobligation, judgment, damagecommitment, cost or expense (including, without limitation, interest, penalties, and including the reasonable fees, disbursements fees and expenses of attorneyscounsel) (any or all of the foregoing referred to hereinafter as "Adverse Consequences") resulting from, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection withrespect -------------------- of, any of the following:
(i) any Any misrepresentation, breach of warranty, or violation non- fulfillment of any representation or warranty of any Seller contained in this Agreement as obligation on the part of the date Corporation or such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and, any document relating hereto or thereto or contained in any schedule or exhibit to this Agreement.
(ii) any Losses resulting from any liability Any failure of any such Seller to have good, valid and marketable title to the issued and outstanding Shares held by such Seller, free and clear of all Liens.
(iii) Any Claim by a stockholder or former stockholder of the Alaska Entities Corporation or any other Person seeking to assert: (A) for ownership or rights to ownership of any Taxes shares of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital capital stock of the Alaska Entities as of August 31, 1998, Corporation or any Subsidiary; (B) any Taxes payable as rights of a result stockholder including any Option, preemptive rights or rights to receive notice or to vote; (C) any rights under the Corporation's charter, bylaws or other constituent documents; or (D) any Claim that his shares of capital stock were not repurchased by the Section 338(h)(10Corporation.
(iv) Election (as hereinafter defined)),(C) for the unpaid Taxes of All demands, assessments, judgments, costs and reasonable legal and other expenses arising from, or in connection with, any Person (other than action, suit, proceeding or Claim incident to any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated herebyforegoing.
(iv) After Any Claim arising out of that certain contract between the date hereof, Sellers, jointly Corporation and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks Maimonides Medical Center as identified on Schedule 3.19 -------- 2.12(a). -------
(vi) Any Claim in excess of $1,000 arising from the failure of the Corporation to have made correct and timely filings with the appropriate governmental agencies concerning the qualification to conduct business in any particular state or otherwise located country.
(b) The Sellers shall not be required to indemnify the Purchaser for (i) the first Fifty Thousand Dollars ($50,000) in the aggregate of all Claims for indemnification made by the Purchaser to the Sellers under this Section 8.2 ----------- (except for Claims arising from breaches of the representations and warranties set forth in Section 2.9(c) and the last sentence of Section 2.11, which Claims -------------- ------------ shall be subject to indemnification from the first dollar), or (ii) the portion that exceeds Seven Million Five Hundred Thousand Dollars ($7,500,000) in the aggregate of any and all Claims for indemnification made by the Purchaser to the Sellers under this Section 8.2. -----------
(c) The liability of each Seller to indemnify the Purchaser pursuant to this Section 8.2 shall be limited to the amount that is equal to the product ----------- of (i) the percentage of the aggregate number of Shares that such Seller is selling to the Purchaser under this Agreement, as set forth on any property ownedSchedule 1.1 attached hereto, leased or otherwise operated by any Alaska Entity and (plus ii) the aggregate liability of ------------ all associated expenses Sellers to remediate such sites in compliance with applicable Environmental Laws); andindemnify the Purchaser pursuant to this Section 8.2. -----------
Appears in 1 contract
Sources: Stock Purchase Agreement (Answer Think Consulting Group Inc)
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity limitations set forth in Section 6.2(d) hereof8.(f), Sellerseach Seller agrees, jointly and severally, shall on an after-tax basis to indemnify and hold Buyer harmless from and against any and all Damages (as defined in Section 8.(d)) incurred by Buyer and its Affiliates or which Buyer may sustain at any time arising out of or by reason of the following, to the extent not taken into account in determining the Post-Closing Purchase Price Adjustment Amount or to the extent the item constitutes a Permitted Liability:
(including 1) The inaccuracy or breach of any of the Alaska Entities after Representations made by the Closing) and their respective controlling persons, officers, directors and representatives Seller or the Company in or pursuant to this Agreement (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay in each case without giving effect to any Buyer Indemnitee disclosure of matters contained in the amount Exhibits and without giving effect to any materiality qualification);
(net 2) Any failure by any Seller to perform any obligation or comply with any covenant or agreement of such Seller specified in this Agreement or in any other document executed at Closing;
(3) Any claim (i) for wages or fringe benefits made by any employee of Company with respect to the period ending immediately preceding the Closing Date; (ii) for severance payments or other liabilities with respect to the termination of any proceeds received by employees of Company; or (iii) with respect to the Buyer Indemnities from injury or death of any form such employee arising out of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtainedevents occurring prior to the Closing Date;
(4) of, any loss, liability, claim, judgment, damage, cost or expense Any claim (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) claims alleging death or diminution in valueinjury to persons or damage to property), whether based in tort, contract or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly otherwise resulting from or in connection with:caused by any product sold, or service provided, by Company prior to the Closing Date;
(i5) any breach Any Company debt, obligation or violation liability, whether known or unknown, fixed or contingent, of any representation or warranty nature whatsoever before the Closing Date, including but not limited to all Taxes and environmental liabilities of any Seller contained in this Agreement as nature, other than Permitted Liabilities;
(6) Any of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of matters disclosed on any of the Alaska Entities Exhibits;
(7) Any liability or obligation arising out of (A) the conduct of any trade, business or transactions by Company prior to the Closing, (B) the termination of employment of any employee by Company on or prior to the Closing, (C) any Benefit Plan; or (D) the ownership, lease, use, occupation or operation of any facility or property at any time owned, leased, used, occupied or operated by Company;
(8) Any liability of the Company under Treasury Regulation Section 1.1502-6 promulgated by the Department of Treasury (“Treasury Regulation”) or any under any comparable or similar provision under state, local or foreign tax laws or regulations for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31the Closing Date;
(9) Any Tax, 1998 (interest or for penalty payable by the Company or Buyer after Closing arising out of any Tax period beginning before and ending after August 31, 1998 transactions related to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital termination of the Alaska Entities as of August 31, 1998, GeneSeek Option Plan (Bincluding but not limited to Code Section 409A) any Taxes payable other than as a result of improper actions or omissions by Buyer after Closing;
(10) Any Taxes associated with all transactions occurring in all tax years ending on or before the Section 338(h)(10) Election Closing Date in excess of the provision for income taxes included in the determination of Final Closing Total Liabilities (as hereinafter defined)),(Cdefined in Section 12.(e)). Any claim that an item breaches more than one provision of Section 8.(b) for shall be deemed to fall into the unpaid Taxes preceding category that has the longest survival period. Sellers agree that they shall not have any claim or right of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (indemnification or contribution or any similar provision other right of state, local, or foreign law), as a transferee or successor, recourse against Company with respect to Damages. Sellers waive and release any and all such claims and right. Sellers agree that the indemnities set forth in clauses (3) – (10) above shall not be affected by contract, or otherwise disclosures which relate thereto and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇are contained in the Exhibits.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms limitations hereinafter set forth, each of WFA and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersFWC shall, jointly and severally, shall on an after-tax basis indemnify indemnify, defend and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) save each of Buyers and their respective controlling personsAffiliates (other than the Subsidiaries, the Partnerships and the Lower Tier Entities), any of their respective officers, directors directors, agents, employees, counsel, partners (limited or general), members, managers, accountants, consultants, lenders and controlling persons (if any), and the personal representatives or successors and assigns of any of the foregoing (individually, the "Buyer Indemnitee" and collectivelyIndemnitees"), "Buyer Indemnities") harmless from, against, for and will pay to any Buyer Indemnitee the amount (net in respect of any proceeds received by and all damages, losses (including Environmental Losses, losses of direct or indirect income or revenues of any nature from the Buyer Indemnities from Partnerships and the Lower Tier Entities now or at any form time hereafter payable and the diminution in value of insuranceany of the Units or the Other Units), indemnity settlement payments, obligations, liabilities, claims, actions or other source causes of reimbursementaction, encumbrances and costs and expenses, whether or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense not involving a third party (including, without limitation, interestreasonable attorneys' and accounting fees and, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not as to matters involving a third-party claim third party, costs of any necessary investigation) (but not including maintenance and repair expenses normally incurred in the operation of real properties) (collectively, "Losses"), arisingas and when suffered, directly sustained, incurred or indirectly from required to be paid by any of the Buyer Indemnitees arising from, as a result of or in connection with:
(ia) any breach or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of the Alaska Entities representations and warranties made by any of Sellers in this Agreement;
(A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (Bb) any Taxes payable failure by any of Sellers to perform or comply with any covenant or agreement contained in or made in connection with this Agreement;
(c) any third-party claim (i) asserted against any Subject LP or Subject Lower Tier Entity which accrued at, or as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, localof, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable prior to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.by this Agreement, which third-party claim affects such Subject LP or Subject Lower Tier Entity, (ii) asserted against or affecting, directly or indirectly, any of the Buyer Indemnitees arising from, as a result of, or in connection with the ownership, management or operation of any of WFA, FWC, the Subsidiaries, the Partnerships or the Lower Tier Entities or any entity that would be deemed a "single employer" with any of them under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA (an "ERISA Affiliate") at or prior to the consummation of the transactions contemplated by this Agreement, or (iii) which is (A) based on derivative liability of any of Sellers or their Affiliates or any of their respective officers, directors, managers, or general partners and (B) asserted against any of Buyers or their Affiliates arising from, as a result of, or in connection with the execution or delivery of this Agreement or any document listed on Schedule 10.01(c) (an "Additional Document") by any of Sellers or the consummation by any of Sellers of the transactions contemplated hereby or thereby;
(id) After any third-party claim asserted against or affecting, directly or indirectly, any of the Buyer Indemnitees arising from, as a result of, or in connection with the ownership, management or operation (including, without limitation, claims alleging breach of fiduciary duty or violation of the federal securities laws) of any of the partnerships or properties (other than any Partnership or Property with respect to which any nominee of the Associate General Partner, the Class B Directors or the Residential Committee of FWC or a Subsidiary (as such terms are defined in the Stockholders' Agreement) was serving as an officer or director of the general partner of the Partnership at the time that any such claim accrued) after the consummation of the transactions contemplated by this Agreement directly or indirectly owned or controlled in whole or in part by WFA, FWC, the Subsidiaries, or any entities directly or indirectly controlled by any of the foregoing or any ERISA Affiliate of any of them;
(e) except as disclosed on the Schedules hereto or the Financial Statements of the Subject LPs and except for sick pay and sick leave accrued through the date hereof, any and all liabilities or obligations whether arising before, on or after the Closing relating to or arising out of any "employee benefit plan" within the meaning of Section 3(3) of ERISA, and any other bonus, profit sharing, compensation, pension, severance, deferred compensation, fringe benefit, insurance, welfare, medical, post-retirement health or welfare benefit, medical reimbursement, health, life, stock option, stock purchase, tuition refund, service award, company car, scholarship, relocation, disability, accident, sick pay, sick leave, vacation, termination, individual employment, executive compensation, incentive, bonus, commission, payroll practices, retention or any other type of plan, agreement, policy, trust fund or arrangement, maintained, sponsored or contributed to by any of Sellers, jointly their Affiliates, or any ERISA Affiliate, except for any and severallyall liabilities or obligations arising after the Closing with respect to any such plan, shall: agreement, policy, trust fund or arrangement maintained, sponsored or contributed to by any of the Partnerships or the Lower Tier Entities that relate to or arise out of events occurring after the Closing.
(Af) hold Buyer and each Alaska the failure at any time on or prior to the Closing or, with respect to the HUD Entities, any HUD Closing of any of the Partnerships or the Lower Tier Entities to comply in all material respects with any rule or regulation promulgated by HUD and, to the extent such noncompliance continues after the Closing or the applicable HUD Closing, as the case may be, until such time as the noncomplying Partnership or Lower Tier Entity harmless from can reasonably achieve compliance;
(g) any Losses, prepayment penalty or similar expense incurred by any Subject LP or Subject Lower Tier Entity upon acceleration by a mortgagee of a mortgage loan secured by a mortgage on a Subject Property for failure to obtain the consent of the mortgagee to the transactions contemplated by this Agreement (an "Acceleration Event") together with the costs and expenses of refinancing such entity mortgage loan (determined as provided below), net of any Interest Savings (defined below) resulting from such refinancing. For purposes of this Agreement, "Interest Savings" shall mean the present value (discounted at a rate of 10% per annum) as of the date of refinancing of future interest payments remaining on the mortgage loan being refinanced less the present value of future interest payments together with any "points" paid on the new mortgage loan, but in no event shall Interest Savings be less than zero. For purposes of the foregoing, the costs and expenses of refinancing a mortgage loan shall be the present value detriment (discounted at a rate of 10% per annum) to remove the applicable Subject LP or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Subject Lower Tier Entity (plus all associated as a result of incurring costs and expenses of refinancing prior to remediate such sites in compliance with applicable Environmental Laws)the maturity date of the mortgage loan; and
Appears in 1 contract
Sources: Subscription and Purchase Agreement (Insignia Financial Group Inc)
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, Sellers jointly and severally, severally shall on an after-tax basis indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personsBuyer's employees, officers, directors and representatives stockholders (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities----- Indemnified Parties") fromharmless from and against, and will pay agree promptly to defend ------------------- Buyer from and reimburse Buyer Indemnified Parties for, any Buyer Indemnitee the amount (net and all losses, damages, costs, expenses, liabilities, obligations and claims of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense kind (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants ' fees and other professional advisorslegal costs and expenses) which Buyer Indemnified Parties may at any time suffer or diminution in valueincur, whether or not involving become subject to, as a third-party claim (collectively, "Losses"), arising, directly or indirectly from result of or in connection with:
(i) any breach or violation inaccuracy of any representation of the representations and warranties made by any Seller in or warranty pursuant to this Agreement, or in any instrument, certificate or affidavit delivered by any Seller at the Closing in accordance with the provisions of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 hereof;
(other than those contained in Section 3.19 hereof, which are solely covered ii) any failure by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by any Seller pursuant to this Agreement;
(iii) the Retained Liabilities or the Retained Assets;
(iv) the operation or ownership of the Businesses, the Purchased Assets or the SouthCom Assets prior to the Closing (except for the Assumed Liabilities); or
(v) any suit, action or other proceeding brought by any governmental authority or Person arising out of, or in any way related to, any of the matters referred to in Sections 7.1(a)(i), 7.1(a)(ii), 7.1(a)(iii), or 7.1(a)(iv).
(b) The amounts for which Sellers shall be liable under Section 7.1(a) of this Agreement shall be net of (i) any insurance proceeds payable to Buyer Indemnified Parties in connection with the facts giving rise to the right of indemnification and (ii) any tax benefits received by or accruing to the Buyer Indemnified Parties.
(c) Notwithstanding any other provision to the contrary, Sellers shall not be required to indemnify and hold harmless Buyer Indemnified Parties pursuant to Section 7.1(a)(i) or 7.1(a)(v) (to the extent applicable to Section 7.1(a)(i)), unless:
(i) Buyer has asserted a claim with respect to such matters within twenty-four (24) months after the Closing, except with respect to matters arising under Section 3.16 or 3.21 hereof, in which event Buyer must have asserted a claim within the applicable statute of limitations; and
(ii) any Losses resulting from any liability such claims for indemnification exceed an aggregate of any $15,000, at which time Sellers shall pay all such claims up to a maximum amount equal to the Purchase Price (after adjustment to the Cash Purchase Price portion of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect Purchase Price pursuant to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law2.4), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. Each Seller does hereby severally (a) If the Closing occurs, subject to the terms extent of his proportionate ownership of the Shares, and conditions of this Section 6.2not jointly, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) Parent, and their respective controlling personsAffiliates, directors, officers, directors employees and other agents and representatives (individuallyfrom and against any and all liabilities, "Buyer Indemnitee" and collectivelyjudgments, "Buyer Indemnities") fromclaims, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurancesettlements, indemnity or other source of reimbursementlosses, or other offsets or benefitsdamages, including tax benefitsfees, obtained) ofLiens, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interestTaxes, penalties, and the reasonable fees, disbursements obligations and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "“Losses")”) incurred or suffered by any such Person arising from, arising, directly or indirectly from by reason of or in connection with:
(ia) any misrepresentation or breach or violation of any representation representation, warranty, covenant or warranty agreement of any such Seller contained in this Agreement as or any certificate delivered by such Seller hereunder or thereunder;
(b) claims arising from, by reason of or in connection with any of the date following, to the extent that it relates to matters prior to or on the Closing Date,
(i) Bay Area Specialty Pharmacies;
(ii) M▇▇▇▇▇▇ ▇▇▇▇, except for claims under the T▇▇▇ Purchase Agreement;
(iii) The matters listed on Schedule 2.16;
(iv) Any claim of attorneys, accountants and other professionals engaged by Target or Sellers for fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby; and
(v) Any options issued, or alleged to be issued by Target, including under any plan or resolution of the Board of Directors of Target;
(c) the failure of such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant Seller to comply with Article 8 or any material failure of any Seller Federal, state or local tax laws applicable to perform any of its obligations under the transactions contemplated by this Agreement; and
(iid) any Losses resulting from any liability of and all actions, suits, proceedings, demands, judgments, costs and legal and other expenses incident to any of the Alaska Entities matters referred to in clauses (Aa) through (c) of this Section 9.1; provided, however, that notwithstanding the foregoing, (W) the indemnification to be provided by Sellers in respect of any matter referred to in clause (a) above (other than for breach of any Taxes of Sellersrepresentation or warranty set forth in Sections 2.1, the Alaska Entities 2.2, 2.5, 2.14, 2.18, 2.29, 2.33, 2.34, 2.35 and their Affiliates 2.36) shall not exceed, with respect to any Tax period or portion thereof ending on or before August 31Seller, 1998 (or for any Tax period beginning before and ending after August 31, 1998 an amount equal to the extent allocable original principal amount of such Seller’s Note; (determined X) the indemnification to be provided by Sellers in respect of a manner consistent breach of any representation or warranty set forth in Sections 2.1, 2.2, 2.5, 2.14, 2.18, 2.29, 2.33, 2.34, 2.35 or 2.36, or any matter referred to in clause (b) above, shall not exceed, with Section 7) respect to any Seller, an amount equal to the portion of Purchase Price payable to such period beginning before and ending on August 31, 1998Seller under Section 1.2; (Y) to the extent such Taxes are not reflected Sellers will have no indemnification obligation in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes respect of any Person matter referred to in clause (a) above (other than for breach of any of the Alaska Entities) under Reg. ss. 1.1502-6 (covenant or any similar provision of state, localagreement, or foreign law)breach of representation or warranty set forth in Sections 2.1, as a transferee or successor2.2, by contract2.5, or otherwise 2.14, 2.18, 2.29, 2.33, 2.34, 2.35 and 2.36) until the aggregate amount of all Losses with respect to such matters exceeds $100,000 and then for the amount of all such Losses; and (DZ) for the liability of Sellers shall be joint and several to the extent, but only to the extent, that Buyer shall have the right to offset any Taxes attributable Losses that are indemnifiable by any Seller hereunder against any Notes payable to any deferred income attributable to any deferred income by Reg. ▇▇Seller.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity limitations set forth in Section 6.2(d) hereofthis Article IX, Sellers, jointly and each Seller shall severally, shall on an after-tax basis in accordance with his/its Indemnification Pro Rata Portion, indemnify and hold harmless the Buyer and its Affiliates the Companies (including the Alaska Entities after the Closingas wholly-owned subsidiaries of Buyer) and their respective controlling personsstockholders, directors, officers, directors and representatives (individuallyemployees, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants agents and other professional advisors) or diminution in value, whether or not involving a third-party claim Affiliates (collectively, the "LossesBuyer Indemnified Parties") from and against and in respect of any and all Losses arising out of, relating to, or resulting from any (i) breach of any of the representations and warranties made by the Sellers and the Companies in Article III (excluding, in any event, those representations and warranties made by the Sellers, and not the Companies, contained in Section 3.31), arising(ii) any breach of the covenants or agreements made by the Companies in or pursuant to this Agreement (for the avoidance of doubt, directly in this Section the terms "covenants" and "agreements" specifically exclude any representation or indirectly warranty under Article III), or (iii) any inaccuracy in any certificate, instrument or other document delivered by the Companies as required by this Agreement.
(b) Subject to the terms and limitations set forth in this Article IX, each Seller shall severally, in accordance with his/its Indemnification Pro Rata Portion, indemnify and hold harmless the Buyer Indemnified Parties from and against and in respect of any and all Losses arising out of, relating to or in connection with:
resulting from (i) any breach or violation of any representation or warranty of any Seller contained in this Agreement as of the date representations and warranties made by such representation or warranty is made or deemed made under Section 8.1 (other than those contained Seller in Section 3.19 3.31 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any breach or violation by such Seller of the Alaska Entities covenants or agreements made in this Agreement by such Seller, or (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (Biii) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of inaccuracy in any Person (certificate, instrument or other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred document delivered by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated Seller as required by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andthis Agreement.
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, Sellers will jointly and severally, shall on an after-tax basis severally indemnify and hold harmless Buyer Buyer, and its Representatives and Affiliates (including collectively, the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer IndemnitiesIndemnitees") fromfor, and will pay to any Buyer Indemnitee Indemnitees the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) monetary value of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), Adverse Consequences arising, directly or indirectly indirectly, from or in connection with:
(ia) any breach or violation of any representation or warranty made by any of Sellers in this Agreement, the certificate delivered pursuant to Section 2.6(a)(vii), or any other certificate or document delivered by Sellers pursuant to this Agreement;
(b) any breach by any of the Sellers of any Seller contained covenant or obligation in this Agreement as of Agreement, the date such representation certificate delivered pursuant to Section 2.6(a)(viii), or warranty is made any other certificate or deemed made under Section 8.1 document delivered by Sellers pursuant to this Agreement;
(other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(bc) below) or a material breach any Liabilities of any agreement of Sellers existing at or covenant arising out of a state of facts existing on or before the Closing Date, to the extent that such Liabilities are not reflected or reserved against in the Interim Balance Sheet, including Liabilities arising from or relating to:
(i) any product shipped or manufactured by, or any material failure of any Seller to perform any of its obligations under this Agreement; andservices provided by, Sellers before the Closing Date;
(ii) any Losses Environmental, Health, and Safety Liabilities;
(iii) any risk or actual incidence of illness, disability, death or other injury to, or the contraction of any diseases by, any Person (including any Employee or former Employee) resulting from exposure to hazardous materials, products, or other materials on or before the Closing Date, without regard to when such injuries or diseases are first manifested;
(d) any liability matter disclosed in Schedules 3.19 or 3.20;
(e) 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 any of Sellers (or any Person acting on such Seller's behalf) in connection with any of the Alaska Entities Contemplated Transactions;
(Af) for any Taxes Claim relating to Employment Laws which may be made or brought or levied against Buyer, or which Buyer may suffer or incur, after the Closing Date, that are brought by or in respect of Sellersany Employee, the Alaska Entities and or by any Governmental Body on their Affiliates with respect to any Tax period or portion thereof ending on or before August 31behalf, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are Claim relates to the period prior to the Closing Date or relates to any Employee who is not reflected an Assumed Employee;
(g) any Retained Liability or Excluded Asset; and
(h) any and all Proceedings or Claims incidental to any of the matters set forth in Section 11.2(a) through (g). Subject to the limitation on indemnity set out in Section 11.5, Sellers will also jointly and severally indemnify Buyer for the amount (the "Revenue Deficiency") by which, in the Net Working Capital period between the Closing Date and June 30, 2002, the license revenues generated by the Business are less than $5,000,000. The Buyer will be indemnified for any Revenue Deficiency in an amount to be calculated according to the following formula, up to a maximum amount of $500,000: Revenue Deficiency X $1,150,000 ------------------ $5,000,000 (For example, for a Revenue Deficiency of $1,000,000, the amount of the Alaska Entities as of August 31, 1998, (Bindemnity would be equal to $230,000.) any Taxes payable Sellers will also jointly and severally indemnify Buyer for losses sustained by the Buyer in the first year following Closing as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes voluntary termination of any Person (other than employment by any of the Alaska Entities) under Reg. ss. 1.1502-6 (Assumed Employees, including loss of actual or any similar provision proposed license revenue, costs of statehiring and training of employees, locallost opportunity costs, and customer Claims in respect of products licensed to, or foreign law)services provided to, as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇such customers.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersSellers shall, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer Purchaser and each of its Affiliates Subsidiaries and Affiliates, and each of their respective direct and indirect parent companies, managers, partners, members, managers, officers and directors, and other Representatives (individually "Purchaser Indemnitee" or collectively, the “Purchaser Indemnitees”) from and against all Damages incurred by such Purchaser arising from:
(a) any failure by any Seller or Company to perform any of its covenants or other obligations contained in this Agreement;
(b) any breach of any representation or warranty (A) made by any Seller in Article IV or (B) made by Company in Article III or any inaccuracy in or breach of any certificate or instrument delivered on behalf of any Seller or Company pursuant to this Agreement;
(c) any Recoupment Claim, Fraud Claim or Professional Malpractice Claim or negligence claim that is not expressly disclosed in the schedules to this Agreement as to any Seller; and
(d) any liability for Taxes of Company, including but not limited to: (a) any loss attributable to any breach of or inaccuracy in any representation or warranty by any Seller or Company made in this Agreement; (b) any loss attributable to any breach or violation of, or failure of any Seller or Company to fully perform any covenant, agreement, undertaking, or obligation in this Agreement; (c) all Taxes (or the non-payment thereof) of the Company or relating to the Business for all Pre-Closing Tax Periods including the portion of a Straddle Period ending on the Closing Date; (d) any and all Taxes of any member of an affiliated, consolidated, combined, or unitary group of which the Company (or any predecessor of the Company) is or was a member on or prior to the Closing Date by reason of a liability under Treasury Regulation Section 1.1502-6 or any comparable provisions of foreign, state, or local Law; and (e) any and all Taxes of any person imposed on the Company arising under the principles of transferee or successor liability or by contract, relating to an event or transaction occurring before the Closing Date; in each of the above cases, together with any out-of-pocket fees and expenses (including attorneys' and accountants' fees) incurred in connection therewith. Sellers shall reimburse Purchaser for any Taxes of the Alaska Entities Company that are the responsibility of Sellers pursuant to this Section 8.2 within ten (10) Business Days after payment of such Taxes by Purchaser or Company. In the case of Taxes that are payable with respect to a taxable period that begins before and ends after the ClosingClosing Date, the portion of any such Taxes that are treated as Pre-Closing Taxes for purposes of this Agreement shall be: (a) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay in the case of Taxes based upon or related to any Buyer Indemnitee income or receipts deemed equal to the amount which would be payable if the taxable year ended with the Closing Date; and (net b) in the case of other Taxes (such as property Taxes), deemed to be the amount of such Taxes for the entire period multiplied by a fraction the numerator of which is the number of days in the period ending on the Closing Date and the denominator of which is the number of days in the entire period.
(e) any failure by Company to perform any of its covenants or other obligations contained in this Agreement;
(f) any breach of any proceeds received representation or warranty made by Company in this Agreement;
(g) any actual or alleged violation by Company, Sellers or any employee or agent of Company or Sellers of the Buyer Indemnities from provisions of the Florida Patient Self-Referral Act or Florida Statutes Section 456.052;
(h) any form of insuranceRecoupment Claim, indemnity Fraud Claim or other source of reimbursement, Professional Malpractice Claim as to Company for any act or other offsets omission occurring on or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and before the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with:Closing Date;
(i) any breach or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates Company or that is imposed with respect to any Tax period Company or portion thereof ending on its assets or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) operations to the extent such Taxes are not reflected in relate to any taxable period (or portion thereof) ending on or before the Net Working Capital Closing Date;
(j) any liability for insurance audit, insurance claw-back, or governmental audit of the Alaska Entities as of August 31, 1998, Company; and
(Bk) any Taxes payable as a result other claim or cause of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated action by any Alaska Entity (plus all associated expenses Governmental Authority or other Person that in any way relates to remediate such sites in compliance with applicable Environmental Laws); andCompany's existence or Business as conducted on or prior to the Closing Date.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Progressive Care Inc.)
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the other terms and conditions of this Article XI and Section 6.213.1, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, Sellers jointly and severallyseverally agree to defend, shall on an after-tax basis indemnify and hold harmless each Buyer Group Member from and its Affiliates against any and all Losses and Expenses incurred by such Buyer Group Member (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving such Losses and Expenses involve a third-party claim Third Person Claim (collectively, "Losses"as defined below), arising, directly or indirectly from or ) in connection withwith or arising from:
(iA) any breach of any warranty or violation the inaccuracy of any representation or warranty of any a Seller contained or referred to in this Agreement as of the date hereof and as if such representation or warranty is was made on and as of the Closing (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of which will be determined with reference to such specified date), or (B) any agreement inaccuracy in any certificate delivered by or covenant on behalf of Sellers pursuant hereto (in each case, for purposes of determining the amount of any Loss, without giving effect to any materiality, Material Adverse Effect or similar qualifications limiting the scope of such representation, warranty or certification);
(ii) any breach by the Sellers’ Representative of any of its covenants or agreements or any material failure of the Sellers’ Representative to perform any of its obligations contained or referred to in this Agreement.
(iii) any Transaction Expenses in excess of the Closing Date Transaction Expenses as set forth in the Accounting Report;
(iv) any Indebtedness of the Acquired Companies in the aggregate in excess of the Closing Date Indebtedness as set forth in the Accounting Report;
(v) any breach by either Seller of any of its covenants or agreements, or any failure of a Seller to perform any of its obligations obligations, in this Agreement or the Non-Competition Agreement;
(vi) the Restructuring and any Liabilities resulting from the Restructuring; or
(vii) the matters described on Schedule 11.1(a)(vi); provided, however, that:
(A) each Seller shall not be required to defend, indemnify and hold harmless under clause (i) of this Section 11.1(a) with respect to Losses and Expenses incurred by Buyer Group Members (other than Losses and Expenses incurred with respect to inaccuracies of the representations and warranties contained in Sections 5.1(a), (c) — (e), 5.2(a), 5.6(e)(i), the last sentence of 5.7, 5.13 and 5.23 (collectively, the “Sellers’ Fundamental Representations”), as to which this proviso shall have no effect) until the aggregate amount of such Losses and Expenses subject to indemnification by Sellers exceeds $3,000,000 (the “Basket”); provided, however, that once the amount of the Basket is exceeded, each Seller shall defend, indemnify and hold harmless the Buyer Group Members from the aggregate amount of all Losses and Expenses otherwise recoverable under this AgreementArticle XI, irrespective of the Basket; provided further, no Seller shall be liable for any individual Loss or Expense (or series of related Losses or Expenses) otherwise recoverable under Section 11.1(a)(i) which does not exceed $25,000 (which Loss or Expense shall not be counted towards the other limits in this subclause (A) and the following subclause (B)); and
(iiB) any in no event shall the aggregate amount required to be paid by Sellers pursuant to Section 11.1(a)(i) exceed $40,000,000 (other than Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates Expenses incurred with respect to any Tax period or portion thereof ending on or before August 31inaccuracies of the Sellers’ Fundamental Representations, 1998 (or for any Tax period beginning before which Losses and ending after August 31, 1998 Expenses shall be limited to the extent allocable Purchase Price).
(determined b) The indemnification provided for in a manner consistent Section 11.1(a)(i) shall terminate when the applicable representation or warranty terminates in accordance with Section 713.1 (and no claims shall be made by any Buyer Group Member under Section 11.1(a)(i) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign lawthereafter), except that the indemnification by Sellers shall continue as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.to:
(i) After the Sellers’ Fundamental Representations, as to which such representations and warranties shall expire on the date hereofthat is 60 days after the lapse of the longest applicable statute of limitations, Sellersincluding any extensions thereof (which, jointly for the avoidance of doubt, includes all statutes of limitations applicable to the underlying claim);
(ii) the representations and severallywarranties of the Sellers contained in Section 5.6 shall expire on the date that is 60 days after the lapse of the longest applicable statute of limitations, shall: including any extensions thereof (A) hold Buyer and each Alaska Entity harmless from any Losseswhich, incurred by such entity for the avoidance of doubt, includes all statutes of limitations applicable to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Lawsthe underlying claim); and
(iii) any Loss or Expense of which any Buyer Group Member has notified Sellers in accordance with the requirements of Section 11.3 on or prior to the date such indemnification obligation would otherwise terminate in accordance with this Section 11.1, as to which the obligation of Sellers shall continue until the liability of Sellers shall have been determined pursuant to this Article XI, and , if applicable, Sellers shall have reimbursed all Buyer Group Members for the full amount of such Loss and Expense in accordance with this Article XI. The indemnification provided for in this Section 11.1 other than Section 11.1(a)(i) shall survive indefinitely, except as otherwise provided in Section 13.1. For the avoidance of doubt, the parties hereto hereby agree and acknowledge that the survival periods set forth in this Section 11.1(b) and in Section 13.1 are contractual statutes of limitations and any claim brought by any party pursuant to this Article XI must be brought or filed prior to the expiration of the applicable survival period.
(c) Except for any payment required by Section 3.4(b), the Buyer Group Members shall first look to satisfy the amount of any indemnification obligation provided for in this Section 11.1 from the Escrow Funds then remaining in the Escrow Account (and held by the Escrow Agent in accordance with Section 3.7 and the Escrow Agreement) and not subject to any Pending Claims. If any such Escrow Funds, excluding any portion thereof subject to a Pending Claim, are insufficient to satisfy in full any such indemnification obligation, then, subject to any applicable limitations set forth in this Article XI, Buyers shall be entitled to proceed against the applicable Sellers to satisfy the remainder of such indemnification obligation.
Appears in 1 contract
Sources: Equity Purchase Agreement (Kapstone Paper & Packaging Corp)
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, Each Seller shall jointly and severallyseverally indemnify, shall on an after-tax basis indemnify defend, save and hold harmless Buyer and its officers, directors, employees, agents, Representatives and Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "“Buyer Indemnities"Indemnitees”) fromharmless from and against all demands, claims, allegations, assertions, actions or causes of action, assessments, losses, damages, deficiencies, liabilities, costs, expenses and will pay to any Buyer Indemnitee the amount taxes (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitationreasonable legal fees, interest, penalties, and all reasonable amounts paid in investigation, defense or settlement of any of the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in valueforegoing, whether or not involving a third-party claim (any such demands, claims, allegations, etc., of third parties are meritorious; collectively, "Losses")“Buyer Damages”) asserted against, arisingimposed upon, resulting to, required to be paid by or incurred by any Buyer Indemnitee, directly or indirectly from or indirectly, in connection withwith or arising out of:
(ia) any Retained Liability;
(b) any breach or violation inaccuracy of any representation or warranty made by any Seller in this Agreement;
(c) any breach, non-fulfillment, or non-performance of any Seller contained covenant or agreement made by Sellers in or pursuant to this Agreement as to which Sellers is or is to become a party; or
(d) any and all liabilities for any violation of, noncompliance with or failure by any Seller existing on the Closing Date or arising out of any transaction entered into, or any state of facts existing, prior to the Closing Date. During the term of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained Escrow Agreement, Sellers shall pay to Buyer all Buyer Damages in Section 3.19 hereofaccordance with the Escrow Agreement, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting and thereafter from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇immediately available funds.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Asset Purchase Agreement (Fuqi International, Inc.)
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, The Sellers, jointly and severally-------------------------- severally (each, for purposes of Sections 11.1 and 11.2, a "Seller Indemnifying Party"), shall on an after-tax basis indemnify indemnify, defend and hold harmless Buyer and its Affiliates (including the Alaska Entities after Partnership, the Closing) Company and their respective controlling personsshareholders, partners, trustees, officers, directors agents, representatives, employees, Affiliates, successors and representatives assigns (individually, "Buyer Indemnitee" and collectively, for purposes of this paragraph, the "Buyer IndemnitiesCompany Indemnified Parties") fromfrom and against any and all losses, damages, claims, liabilities, actions, suits, proceedings and will pay costs and expenses of investigation or defense thereof, including attorneys' fees payable as incurred, arising out of or relating to any Buyer Indemnitee the amount (net a) misrepresentation or breach of warranty by any Seller or nonfulfillment of any proceeds received covenant or agreement to be performed or complied with by the Buyer Indemnities from such Seller under this Agreement and any form agreement, document, instrument, certificate, schedule or exhibit contemplated hereby; (b) untrue or incomplete statement of insurance, indemnity a material fact contained in any statement or information provided by any Seller or based on any omission to state therein a material fact required to be stated therein or other source information necessary to make the statements therein not misleading; (c) any debts, liabilities or obligations (whether known or unknown, disputed or undisputed, fixed, contingent or otherwise) associated with or relating to any of reimbursementthe Sellers, their officers, directors, partners, trustees or Affiliates or the Properties, or other offsets secured by any of the Sellers, or benefitsby any of the Properties, except those specified on Schedule 7.19 hereto, including tax benefitsany obligations under ------------- any of the Leases, obtainedService Contracts and Management Contracts, to the extent any such obligation was to be performed prior to the Closing Date, or was to be performed after the Closing Date as a result of a breach or default under any of the Leases or Service Contracts by any Seller or its Affiliates prior to the Closing Date; (d) ofany action taken, or any lossfailure to act, liabilityby any Seller in connection with this transaction and the transactions contemplated herein constituting a breach of this Agreement or any agreement, claimdocument or instrument contemplated hereby or a breach of a duty owed to any person, judgment, damage, cost or expense (including, without limitation, interestany action taken to redeem or otherwise liquidate the interest of certain holders in anticipation of the transactions contemplated herein, penaltiesto the extent such action or failure to act results in a violation (or alleged violation) of applicable laws or of the fiduciary duties owed to such holders; (e) pollution or threat to human health or the environment, or any Environmental Claim against any person or entity whose liability for such Environmental Claim any Seller has assumed or retained either contractually or by operation of law, that is related in any way to any of the Properties, including, without limitation, all on-site and off-site activities relating to any of the Properties involving Substances of Concern, and that occurred, existed, arises out of conditions or circumstances that occurred or existed, or was caused, in whole or in part, on or before the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in valueClosing Date, whether or not involving the pollution or threat to human health or the environment, or the existence of any Environmental Claim, is known to any Seller; (f) regardless of whether it arises as a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with:
(i) any breach or violation of any representation or warranty warranty, any debts, liabilities or obligations of any Seller contained in this Agreement as of the date such representation (whether known or warranty is made unknown, disputed or deemed made under Section 8.1 (undisputed, fixed, contingent or otherwise) of, associated with or relating to any asset or property other than the Properties, except those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified specified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws)7.19 hereto; andand -------------
Appears in 1 contract
Sources: Real Property Purchase Agreement (Capital Automotive Reit)
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions provisions of this Section 6.2Article XII, including without limitation the limits on indemnity set forth in Section 6.2(d) hereofSellers shall, Sellers, severally and not jointly and severally, shall on an after-tax basis defend, indemnify and hold harmless Buyer Buyer, its Affiliates and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors directors, shareholders, employees and agents and its and their respective successors, assigns, heirs, executors, administrators, receivers, trustees and other legal representatives (individually, collectively the "Buyer Indemnitee" and collectively, "Buyer IndemnitiesGroup") harmless at all times from and after the Closing Date immediately on demand from, against and will pay to any Buyer Indemnitee the amount (net of any proceeds received by in respect of, and shall reimburse the Buyer Indemnities from Group for, any form of insuranceDamages incurred, indemnity sustained, suffered by or other source of reimbursementresulting to the Buyer Group, or other offsets or benefitsany of them, including tax benefits, obtained) arising out of, any lossresulting from, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or incurred in connection with, or sustained as a result of:
(i) any inaccurate representation made by or on behalf of any of Sellers in or pursuant to this Agreement, any Ancillary Agreement or any certificate, instrument or document delivered pursuant hereto or thereto; or
(ii) any breach of any warranty made by or on behalf of any of Sellers in or pursuant to this Agreement, any Ancillary Agreement, or any certificate, instrument or document delivered pursuant hereto or thereto; or
(iii) any breach, default, nonfulfillment, nonperformance or nonobservance by any of Sellers in the performance, fulfillment, or observance of any of the obligations, covenants or agreements which are to be performed, fulfilled or observed by or on behalf of any of Sellers in or pursuant to this Agreement, any of the Ancillary Agreements or 42 any certificates, instruments or documents delivered pursuant hereto or thereto; and including any failure to pay or discharge any of the Retained Liabilities; or
(iv) any breach or violation of any representation agreement, Contract or warranty understanding between a third party and any of Sellers or any Seller contained in this Agreement as of the date such representation their agents or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereofAffiliates, which are solely covered by Section 6.2(b) below) or a material breach of any agreement fiduciary or covenant other duty owed to such third party by any of Sellers or any material failure of any Seller to perform any of its obligations under this Agreementtheir agents or Affiliates; andor
(iiv) any Losses resulting from products shipped or manufactured by, or any liability services provided by, the Company prior to the Closing Date; or
(vi) any other actions, inactions, deeds or courses of conduct of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (Sellers or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated herebyother Persons acting on their behalf.
(ib) After In addition to the date hereofprovisions of Section 12.2(a), Sellers, severally and not jointly and severally, shallwill defend, indemnify and hold harmless the Buyer Group, and each of them, and will reimburse the Buyer Group, and each of them, for any Damages (including Costs of Remediation and other costs of cleanup and containment) arising from or in connection with any environmental, health, and safety liabilities arising out of or relating to: (A1) hold the ownership, operation, or condition at any time on or prior to the Closing Date of the Owned Real Property or Leased Property (the "Facilities") or the Acquisition Assets, or (2) any Hazardous Materials or other contaminants that were present therein or thereon at any time on or prior to the Closing Date.
(c) Each of the Members shall be severally liable for his pro rata portion of any Damages of the Buyer Group. For example, if all amounts due under the Notes have been paid and/or made subject to offset, and the Buyer Group sustains Damages in the amount of $400,000.00 with respect to a matter for which the Sellers have an obligation of indemnification (and the Company does not make such payment to the Buyer Group), then T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be liable for $220,000.00 (55% of $400,000.00) and each Alaska Entity harmless from any Lossesof the other Members shall be liable for a portion of the $400,000.00 in Damages corresponding to his or her percentage of ownership of the Membership Interests in the Company owned as of the Closing Date, incurred by such entity Membership Interest percentages being as set forth on the signature page to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andthis Agreement opposite the name of each Member.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kevco Inc)
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, Each Seller shall jointly and severally, shall on an after-tax basis severally indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personsAffiliates, stockholders, officers, directors directors, employees, agents, partners, representatives, successors and representatives assigns (individually, "Buyer Indemnitee" and collectively, the "Buyer IndemnitiesBUYER PARTIES") from, and will save and hold each of them harmless against and pay to any on behalf of or reimburse such Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, Parties as and when incurred for any loss, liability, diminution in value, lost profit, demand, claim, judgmentaction, cause of action, cost, damage, cost consequential damage, deficiency, Tax, penalty, fine or expense expense, whether or not arising out of third-party claims (including, without limitation, including interest, penalties, and the reasonable fees, disbursements attorneys' fees and expenses and all amounts paid in investigation, defense or settlement of attorneys, accountants and other professional advisorsany of the foregoing) or diminution in value, whether or not involving a third-party claim (collectively, "LossesLOSSES"), arisingwhich any such Buyer Party may suffer, directly sustain or indirectly from or become subject to, as a result of, in connection with:
, relating or incidental to or by virtue of: (i) any breach by the Companies or violation any Seller of any representation or warranty of made by the Companies or any Seller contained in this Agreement as or any of the date such representation Schedules or warranty is made Exhibits attached hereto, or deemed made under Section 8.1 in any of the agreements, certificates or other instruments or documents furnished by the Companies or the Sellers pursuant to this Agreement; (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(bii) below) any nonfulfillment or a material breach of any covenant, agreement or covenant other provision by the Companies or any material failure Seller under this Agreement or any of the Schedules and Exhibits attached hereto; (iii) any action, demand, proceeding, investigation or claim by any Person against or affecting the Companies or any Buyer Party which, if successful, would give rise to or evidence the existence of or relate to a breach of any of the representations, warranties, covenants or agreements of the Companies or any Seller to perform any of its obligations under this Agreement; and
(iiiv) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates Companies with respect to any Tax period year or portion thereof ending on or before August 31, 1998 the Closing Date as determined pursuant to Section 8.10 hereof; or (or for v) any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, matters set forth on the INDEMNIFICATION SCHEDULE attached hereto; PROVIDED THAT Sellers shall not have any liability under clause (Bi) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person above (other than with respect to the representations and warranties contained in Section 5.1 (Capacity, Organization, Corporate Power and Licenses), Section 5.2 (Capital Stock and Related Matters; Title to Shares), Section 5.3 (Authorization/ Noncontravention), Section 5.4 (Subsidiaries), Section 5.20 (Tax Matters), Section 5.21(Sellers Brokerage and Transaction Bonuses) and Section 5.24 (Affiliate Transactions)) unless the aggregate of all Losses relating thereto for which Sellers would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $200,000 (and then Sellers shall be liable for only such Losses in excess of the $200,000 deductible amount); and PROVIDED FURTHER that Sellers' aggregate liability under clause (i) above (other than with respect to the representations and warranties contained in Section 5.1 (Capacity, Organization, Corporate Power and Licenses), Section 5.2 (Capital Stock and Related Matters; Title to Shares), Section 5.3 (Authorization/Noncontravention), Section 5.4 (Subsidiaries), Section 5.20 (Tax Matters), Section 5.21 (Sellers Brokerage and Transaction Bonuses) and Section 5.24 (Affiliate Transactions)), shall in no event exceed $25,000,000 (with it being understood, however, that nothing in this Agreement (including this Section 8.2(a)) shall limit or restrict any of the Alaska Entities) under Reg. ss. 1.1502-6 (Buyer Parties' rights to maintain or recover any similar provision of state, local, amounts in connection with any action or foreign lawclaim based upon fraudulent misrepresentation or deceit), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity limitations set forth in Section 6.2(d) hereofSections 8.4 and 8.7 of this Agreement, Sellers, jointly and severally, shall on an after-tax basis hereby covenant and agree to indemnify and hold harmless Buyer from and its Affiliates (including the Alaska Entities after the Closing) against any and their respective controlling personsall losses, officersliabilities, directors damages, demands, claims, suits, actions, judgments or causes of action, assessments, costs and representatives (individuallyexpenses, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable attorneys' fees, disbursements any and all expenses incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of attorneys, accountants and other professional advisors) any claim or diminution in value, whether or not involving a third-party claim litigation (collectively, "LossesDamages"), arisingasserted against, resulting to, imposed on or incurred or suffered by Buyer, directly or indirectly indirectly, as a result of or arising from or in connection with:the following (collectively, "Buyer's Indemnifiable Claims"):
(i) any breach Any inaccuracy in or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement of the representations or covenant or warranties (disregarding for purposes hereof, any material failure of any Seller to perform any of its obligations under materiality and Material Adverse Effect qualifications set forth in such representations and warranties) made by Sellers in this Agreement; andor
(ii) any Losses resulting from any liability Any breach or nonperformance of any of covenant, certificate or obligation to be performed or delivered by Sellers pursuant to this Agreement.
(iii) Any liability arising under Environmental Health and Safety Laws relating to or arising from the Alaska Entities Brite Metals facility located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ S.W., Grand Rapids, Michigan.
(iv) All Taxes that are not accrued or reserved for in the Closing Balance Sheet (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates Company with respect to any Tax period taxable periods (or portion thereof portions thereof) ending on or before August 31, 1998 the Closing Date (or for any Tax period beginning before other than the Section 338(h)(10) Taxes) and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) of any Taxes payable other person for which the Company is liable (I) as a result of such person being a member of a consolidated, combined or unitary group that included the Section 338(h)(10) Election (as hereinafter defined)),(C) Company for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 taxable period (or any similar provision of stateportion thereof) ending on or before the Closing Date, local(II) as a successor, or foreign law), as a transferee (III) by contract entered into on or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of before the consummation of the transactions contemplated herebyClosing Date.
(ib) After For purposes of this Article, all Damages shall be computed net of any insurance coverage proceeds received by the date hereofCompany with respect thereto, Sellers, jointly or any corresponding tax benefit when and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred as received by or realized by such entity Party, that reduces the Damages that would otherwise be sustained.
(c) Buyer shall be considered to remove have suffered Damages arising out of or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated resulting from the matters referred to in subsection (a) above if the same shall be suffered by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andparent, subsidiary or Affiliate of Buyer, including, without limitation, the Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (Allotech International Inc)
Indemnification by Sellers. (a) If the Closing occursSellers shall, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellershereby do agree, jointly and severally, shall on an after-tax basis to indemnify and hold harmless Buyer and its Affiliates Buyer, from the Closing until the third (including the Alaska Entities after 3rd) anniversary of the Closing) , against and their respective controlling personsin respect of:
A. All liabilities or obligations of Sellers, officerswhether accrued, directors and representatives (individuallyabsolute, "Buyer Indemnitee" and collectively, "Buyer Indemnities") fromcontingent or otherwise, and will pay to any Buyer Indemnitee including all liabilities or obligations arising out of the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursementTransaction entered into, or other offsets or benefitsany state of facts existing, including tax benefitsprior to the date of the Closing, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interestsuch liabilities or obligations as are described in paragraph B of Section 6 hereof;
B. Any claim, penaltiesdamage or deficiency to the extent resulting from any misrepresentation, and untrue warranty, breach of warranty, or nonfulfillment of any agreement on the reasonable feespart of Sellers under this Agreement or from any misrepresentation in or omission from any certificate or other instrument furnished or to be furnished to Buyer under this Agreement;
C. Any claim, disbursements and expenses liability, damage or obligation to the extent arising out of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arisingattributable to, directly or indirectly from indirectly, the storage or disposal of hazardous waste or materials prior to the date of the Closing;
▇. ▇▇▇ actions, suits, proceedings, demands, assessments, judgments, costs (including attorney’s fees) and expenses incident to any of the foregoing. Sellers shall reimburse Buyer, on demand, for any payment involuntarily made, required by law to be made, or with the consent of Sellers made by Buyer at any time after the date of Closing in connection with:
(i) any breach or violation respect of any representation liability, obligation or warranty of any Seller claim to which the indemnity and hold harmless by Sellers contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇section relates.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Agreement for Sale of Utility System
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity limitations set forth in this Section 6.2(d) hereof8.2, Sellersfrom and after the Closing, each of the Sellers and Holdco (each, an “Indemnifying Party”), jointly and severallyseverally (provided, however, with respect to any indemnifiable Losses under Section 8.2(a)(i), Section 8.2(a)(iii), and Sections 8.2(a)(v)-(viii), no Seller shall be liable for greater than his, her or its respective Indemnification Pro Rata Percentage of such Loss, and with respect to any indemnifiable Losses under Section 8.2(a)(ii) and Section 8.2(a)(iv), Sellers shall be liable on a several and not joint basis and no Seller shall be liable for Losses with respect to any breach of any other Seller), shall on an after-tax basis indemnify indemnify, defend and hold harmless Buyer and its respective Affiliates (including the Alaska Entities after including, following the Closing) , the Company), and their respective controlling personsdirectors, officers, directors managers, stockholders, employees, agents and representatives Representatives and their respective heirs, executors, successors and assigns, each in their capacity as such (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities"the “Indemnified Parties”) from, against and in respect of any and all Losses imposed on, sustained, or incurred or suffered by any of the Indemnified Parties, whether in respect of Third Party Claims, claims between any of the parties hereto, or otherwise, directly or indirectly resulting from, arising out of or relating to:
(i) any breach, inaccuracy or failure to be true and correct, of any representation or warranty made by the Sellers, Holdco or the Company contained in Article III of this Agreement;
(ii) any breach, inaccuracy or failure to be true and correct, of any representation or warranty made by such Seller contained in Article II of this Agreement; provided that, for the avoidance of doubt, in no event will pay any Seller be liable for Losses with respect to any breach, inaccuracy or failure to be true and correct, of any representation or warranty made by any other Seller contained in Article II of this Agreement;
(iii) any breach of any covenant or agreement of the Company contained in this Agreement;
(iv) any breach of any covenant or agreement of a Seller contained in this Agreement; provided that, for the avoidance of doubt, in no event will any Seller be liable for Losses with respect to any breach of any covenant made by any other Seller contained in this Agreement;
(v) any Indebtedness to the extent not paid solely by the Company (or the Sellers or by any of Affiliate of the Company, in each case, on behalf of the Company) and not taken into account in the Final Purchase Price;
(vi) any Sellers Expenses to the extent not paid solely by the Company (or the Sellers or by any of Affiliate of the Company, in each case, on behalf of the Company) and not taken into account in the Final Purchase Price;
(vii) without duplication (and other than any Taxes to the extent such Taxes were taken into account as a liability in the calculation of Closing Indebtedness or otherwise in the determination of Final Purchase Price pursuant to Section 1.3(d)), any (A) Transfer Taxes for which the Sellers are responsible pursuant to Section 5.15(d); (B) Taxes of Holdco or the Company for a Pre-Closing Tax Period (determined in accordance with Section 5.15(c) for taxable periods including but not ending on the Closing Date); and (C) Taxes imposed on Sellers or any of the Seller’s Affiliates (other than the Company) for any taxable period (provided that, in the case of Taxes described in this clause (C), solely the applicable Seller shall be liable); and
(viii) the Retained Assets, the Retained Liabilities, and the items set forth on Section 8.2(a)(viii) of the Disclosure Schedule.
(b) Subject to the other limitations set forth in this Article VIII:
(i) for any claims for indemnification pursuant to Section 8.2(a)(i) or Section 8.2(a)(ii) (other than with respect to claims for breaches of Fundamental Representations or in the case of Fraud), the Indemnified Parties shall be entitled to indemnification, to the extent the aggregate amount of all such Losses exceed one million two hundred thousand dollars ($1,200,000) (the “Deductible”), in which event the Indemnifying Parties shall only pay or be liable for Losses pursuant to Section 8.2(a)(i) or Section 8.2(a)(ii) in excess of the Deductible;
(ii) the maximum aggregate liability of Indemnifying Parties for Losses under Section 8.2(a)(i) or Section 8.2(a)(ii) (other than with respect to claims for breaches of Fundamental Representations or in the case of Fraud), shall not exceed the Indemnity Escrow Amount;
(iii) the maximum aggregate liability of any Indemnifying Party for Losses hereunder shall not exceed their respective Indemnification Pro Rata Percentage of the aggregate Final Purchase Price actually received by ▇▇▇▇▇▇ from Buyer Indemnitee hereunder;
(iv) for any claims of indemnification pursuant to Section 8.2(a)(i), Section 8.2(a)(iii), or Sections 8.2(a)(v)-(vii), the Indemnifying Party shall be entitled to recover (A) first, from the Indemnity Escrow Fund pursuant to the terms of the Escrow Agreement until the Indemnity Escrow Fund has been exhausted, (B) second, directly against Holdco, and (C) third, directly against Sellers, in accordance with their respective Indemnification Pro Rata Percentages;
(v) for any claims of indemnification pursuant to Section 8.2(a)(viii), the Indemnifying Party shall be entitled to recover (A) first, directly against Holdco, and (B) second, directly against Sellers, in accordance with their respective Indemnification Pro Rata Percentages; provided that, notwithstanding the foregoing, the Indemnifying Party may in its sole discretion, but shall not be obligated to, elect to recover all or a portion of such Losses from Indemnity Escrow Fund pursuant to the terms of the Escrow Agreement until the Indemnity Escrow Fund has been exhausted; and
(vi) no Selling Party shall be liable (A) for any Losses relating to any specific matter to the extent that there is included in the Financial Statements a specific liability or specific reserve for such matter, or (B) for any duplication of amounts taken into account in the Final Purchase Price.
(c) Notwithstanding any provision of this Agreement to the contrary, for purposes of determining the amount (net of any proceeds received by Losses (and not for purposes of determining whether any breach has occurred), except as set forth in Section 3.6(a) or with respect to the Buyer Indemnities from defined term “Material Contract”, any form of insurancemateriality, indemnity Company Material Adverse Effect or other source of reimbursement, similar qualifications or other offsets similar terms or benefitsphrases contained or incorporated, directly or indirectly, in any such representation or warranty shall be disregarded and have no effect (as if such standard or qualification were deleted from such representation or warranty).
(d) Notwithstanding anything to the contrary in this Agreement, with respect to any indemnity amounts payable pursuant to Section 8.2(a)(ii) or Section 8.2(a)(iv), the Indemnified Party shall recover from the Indemnifying Party(ies) who is/are liable for such Losses pursuant to Section 8.2(a)(ii) or Section 8.2(a)(iv), and shall not obtain any amounts from the Indemnity Escrow Amount.
(e) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement will limit liability for Fraud.
(f) The Indemnified Party shall use its commercially reasonable efforts to mitigate all Losses, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense seeking recovery under insurance policies (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisorsTail Policy) or diminution in valueindemnity, whether contribution or other similar agreements for any Losses after becoming aware of any fact, event or circumstances which would reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder; provided that such commercially reasonable efforts shall not involving require any Indemnified Party to initiate or prosecute any Proceeding against an insurer. The amount of Losses for which indemnification shall be available pursuant to this Article VIII shall be reduced by (i) any insurance proceeds actually received from a third-party claim (collectively, "Losses"), arising, directly insurer by the Indemnified Party or indirectly from or its Affiliates in connection with:
with the matter giving rise to such Losses (i) any breach or violation of any representation or warranty of any Seller contained in this Agreement as net of the date such representation amount of costs and expenses (including reasonable attorneys’ fees) of recovery or warranty is made collection thereof and any applicable deductibles, retentions or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(bsimilar costs or payments or increased premiums) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
and (ii) any indemnity or contribution amounts actually received from third parties by the Indemnified Party or its Affiliates in connection with the matter giving rise to such Losses resulting from any liability (net of any applicable costs and expenses (including reasonable attorneys’ fees) of recovery or collection thereof) (such net recoveries under clauses (i) and (ii), “Net Recoveries”). If the Alaska Entities (A) for Indemnified Party or any Taxes of Sellers, its Affiliates actually received a Net Recovery with respect to any Losses after an Indemnifying Party has actually made a payment to the Alaska Entities and their Indemnified Party or its Affiliates with respect to any Tax period such Losses, such Indemnified Party or portion thereof ending on or before August 31its Affiliates with respect to such Losses, 1998 (or for any Tax period beginning before and ending after August 31, 1998 such Indemnified Party shall promptly pay over to the extent allocable (determined Indemnifying Party that amount, if any, that such Indemnifying Party would not have been required to pay to such Indemnified Party or its Affiliate if such Net Recovery had been received prior to such payment by the Indemnifying Party, provided that the Indemnified Party shall not be obligated to pay over any such amount in a manner consistent with Section 7) excess of the amount of the indemnity payment hereunder to the portion of Indemnified Party with respect to such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇claim.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Securities Purchase Agreement (Masonite International Corp)
Indemnification by Sellers. From and after the Closing: (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, jointly and Indemnifiable Losses. Sellers severally, shall on an afterand not jointly, in accordance with their relative Pro Rata Interests (except, with respect to clause (1) and (2) below, in the case of the breach, inaccuracy, non-tax basis compliance or non-performance of any of the representations, warranties, covenants or agreements made by a particular Seller (and not the Company), in which case only such Seller) will indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the ClosingCobalt Companies) and their respective controlling persons, officers, directors directors, employees, equityholders, agents, representatives, successors and representatives permitted assigns (individually, "Buyer Indemnitee" and collectively, "the “Buyer Indemnities"Parties”) from, and will hold each of them harmless from and against and pay to any on behalf of or reimburse such Buyer Indemnitee the amount (net Parties in respect of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liabilityLiability, demand, claim, judgmentaction, cause of action, cost, damage, cost deficiency, Tax, penalty, fine, or expense expense, whether or not arising out of third party claims (including, without limitation, interest, penalties, reasonable attorneys’ fees and expenses, court costs, and all amounts paid in investigation, defense, or settlement of any of the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisorsforegoing) or diminution in value, whether or not involving a third-party claim (collectively, "“Losses")”) which any such Buyer Party may suffer, arisingsustain or become subject to, directly or indirectly from or as a result of, in connection with, relating or incidental to or by virtue of:
(i1) any the breach of or violation of inaccuracy in any representation or warranty of any such Seller or the Company contained in this Agreement (or any Schedule hereto) as of the date Agreement Date, or as of the Closing Date as though such representation or warranty is were made on and as of the Closing Date (except to the extent such representations and warranties address matters as of particular dates, in which case, on and as of such dates), or deemed made under Section 8.1 in any certificate delivered hereunder;
(other than those 2) the breach, non-compliance or non-performance of any covenant or agreement of such Seller or the Company contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and;
(ii3) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellersthe Cobalt Companies for Pre-Closing Tax Periods, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) except to the extent such Taxes are taken into account in determining final Closing Working Capital;
(4) (i) any Company Transaction Cost not reflected paid prior to the Closing, (ii) any outstanding Closing Indebtedness, (iii) (A) any FAR Payments (including, for clarity, any Losses relating to any claim by any holder of any FAR that the payment received by such holder in the Net Working Capital respect of the Alaska Entities as of August 31, 1998, such FAR was incorrect) or (B) the matters set forth on Schedule 9.2(a)(4) or (iv) any Taxes payable claim after the Closing arising under or relating to any Redemption Agreement, in each case, that were not taken into account as a result reduction to the final Purchase Price;
(5) any obligation of a Cobalt Company after the Section 338(h)(10) Election Closing to indemnify or hold harmless or provide any related rights to any current or former director, manager or officer of a Cobalt Company (for clarity, other than in their capacity as hereinafter defined)),(Ca Seller Party) for claims that relate to periods prior to the unpaid Taxes of any Person Closing to the extent not paid by the tail insurance coverage policy obtained pursuant to Section 6.3;
(6) the assets described in Schedule 2.2(c) or the transfer thereof to Sellers;
(7) Environmental Damages to the extent resulting from Known Environmental Conditions, other than any of such Losses to the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
extent resulting from (i) After any change of use of the date hereofFacility from industrial, Sellersor any shutdown of operations at the Facility, jointly after the Closing Date, (ii) any investigation, remediation, or other environmental response actions by the Buyer Parties conducted to investigate, monitor, eliminate or control any environmental risk other than risks to the extent resulting from the presence or Release of Known Environmental Conditions consistent with the least stringent applicable remediation or other standard acceptable to the relevant Governmental Authority or (iii) any change in Environmental and severallySafety Requirements after the Closing Date. In connection with any site remediation, shall: the least stringent applicable remediation standard is the least costly, protective standard acceptable to the relevant Governmental Authority, which may include, without limitation, the use of reasonable deed restrictions, environmental use controls, and engineering controls to limit exposure to contaminants that are allowed to remain in place, to the extent such restrictions or controls would not interfere with site operations of the type currently conducted;
(A8) the failure of the Company to own, as of the Closing, good and marketable fee simple title to all of the Real Property free and clear of all Liens other than Permitted Liens; or
(9) hold Buyer and each Alaska Entity harmless any third-party claims relating to, arising out of or resulting from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andthe Pending Litigation.
Appears in 1 contract
Sources: Unit Purchase Agreement
Indemnification by Sellers. (a) If the Closing occursEach Seller, subject severally, hereby covenants and agrees that, to the terms and conditions of this Section 6.2fullest extent permitted by Legal Requirement, including without limitation the limits on indemnity set forth in Section 6.2(d) hereofsuch Seller will defend, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer Buyer, and its Affiliates (including the Alaska Entities after the Closing) Related Persons and Representatives, and their respective controlling persons, officers, directors and representatives (individuallydirectors, "Buyer Indemnitee" and collectivelymembers, "Buyer Indemnities") frommanagers, employees, agents, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penaltiesRepresentatives, and all successors and assigns of the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim foregoing (collectively, "Losses"the “Buyer Indemnified Persons”), arisingfor, directly or indirectly from and against any Adverse Consequences arising from or in connection with:
(i) any breach or violation Breach of any representation or warranty of any made by such Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(bA) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and, (B) the Schedules, (C) the certificates delivered pursuant to this Agreement, (D) any transfer instrument or (E) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(ii) any Losses Breach of any covenant, obligation or agreement of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(iii) any Liability of the Company based on facts, events or circumstances occurring before the Closing Date, or arising out of or in connection with the ownership and operation of the Company and the Assets and Business prior to the Closing, or facts and circumstances relating specifically to the Company and the Business existing at or prior to the Closing, respectively, whether or not such Liabilities or claims were known or unknown, absolute, accrued or contingent, on such date;
(iv) all Current Seller Liabilities and any Liability or Indebtedness of the Company not reflected on Schedule 2.4 or the Closing Statement, but excluding the Bank Loans;
(v) all Retained Liabilities;
(vi) all Current Litigation Matters:
(vii) any Liability of the Company to Sellers or any Related Person of Sellers;
(viii) any Liability of the Company resulting from, caused by, or arising in connection with the termination or assignment of any Excluded Contract; and
(ix) any claim by any Person for any brokerage or finder’s fee, commission or similar payment based upon any agreement or understanding alleged to have been made by such Person with any Seller in connection with this Agreement or any of the Contemplated Transactions.
(b) In addition to its indemnification obligations under Section 7.3(a), Sellers hereby covenant and agree that, to the fullest extent permitted by Legal Requirement, they will defend, indemnify and hold harmless the Buyer Indemnified Persons for, from and against any liability Adverse Consequences (including costs of cleanup, containment or other Remedial Action) arising out of acts or neglect occurring or conditions existing at or before Closing from or in connection with:
(i) any Environmental, Health and Safety Liabilities arising out of or relating to (A) the conduct of any activity by Sellers, the Company, or their Related Persons, or any employee, contractor, agent or Representative thereof on or prior to the Closing Date, or relating to the Business and Assets, including the Properties, of the Company; (B) the ownership or operation by any Person at any time on or prior to the Closing Date of any of the Alaska Entities Assets, including the Properties, or the Business of the Company, or (C) any Hazardous Materials or other contaminants that were present on the Properties or Assets at any time on or prior to the Closing Date; or
(ii) any bodily injury (including illness, disability or death, regardless of when such bodily injury occurred, was incurred or manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any Person or any Asset, including the Properties, in any way arising from or allegedly arising from (A) for any Taxes of Hazardous Activity conducted by Sellers, the Alaska Entities and Company or their Affiliates Related Persons or any employee, contractor, agent or Representative thereof, or any other Person, with respect to the Business or the Assets, including the Properties at any Tax period time on or portion thereof ending prior to the Closing Date; or (B) from any Hazardous Material that was (1) present or suspected to be present on or before August 31, 1998 the Closing Date on or at the Properties (or for present or suspected to be present on any Tax period beginning before other property, if such Hazardous Material emanated or allegedly emanated from any Property and ending after August 31was present or suspected to be present on any Property, 1998 on or prior to the extent allocable Closing Date) or (determined in a manner consistent with Section 72) to Released or allegedly Released by such Seller, the portion of such period beginning before and ending Company or their Related Persons, or any Person, on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than or at any of the Alaska Entities) Properties or Assets at any time on or prior to the Closing Date. Buyer, either directly or through the Company, will be entitled to control any Remedial Action, any Proceeding relating to a claim that any Environmental Law has been violated and any other Proceeding with respect to which indemnity may be sought under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign lawthis Section 7.3(b), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Meridian Waste Solutions, Inc.)
Indemnification by Sellers. (a) If From and after the Closing occurs, and subject to the terms and conditions limitations of this Section 6.2Article 10, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellerseach Seller shall, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer Buyer, Master Fund, and its Affiliates (including the Alaska Entities after the Closing) Feeder Fund and their Affiliates, their respective controlling personssuccessors and assigns, and in each such case their respective present or former directors, officers, directors shareholders, employees and representatives agents (individually, "“Buyer Indemnitee" Indemnified Parties”) harmless from and collectively, "Buyer Indemnities") from, against any and will pay to all Losses at any time incurred by any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or Indemnified Party in connection with, resulting from, related to or arising from:
(ia) any material breach by a Seller of any of its representations or warranties (with materiality determined, where applicable, by reference to the Transferred Contract that is the subject of the relevant representation or warranty) in this Agreement, the Assignment and Assumption Agreements, or in any other agreement entered into in connection with this Agreement;
(b) any material breach or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach nonfulfillment of any agreement or covenant (in each case with materiality determined, where applicable, by reference to the Transferred Contract that is the subject of the relevant agreement or covenant) to be performed by a Seller pursuant to this Agreement, the Assignment and Assumption Agreements, or in any other agreement entered into in connection with this Agreement;
(c) any claim by an Obligor or a third party in connection with a Seller’s making or collecting loans or performing any transactions under the Transaction Documents prior to or at the Closing Date; or
(d) any failure by a Seller to pay or perform, or any material failure claim against a Buyer Indemnified Party by a third party that, if successful, would give rise to, any of the Excluded Obligations. Notwithstanding anything to the contrary contained in this Agreement, neither Seller has made any representations or warranties, and therefore provides no indemnification, regarding: (i) the creditworthiness, solvency or financial ability of any Seller Obligor or Guarantor or any other obligor, including any pledgor, any letter of credit issuer or insurer to pay or to perform any of its liabilities or obligations under this Agreement; and
with respect to the Transferred Assets, or (ii) any Losses resulting from any liability Obligor’s or Guarantor’s paying or performing pursuant to the terms of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇Transferred Contract.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Transfer Agreement (PIMCO Capital Solutions BDC Corp.)
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms provisions of Article XII and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) 13.4 hereof, the Sellers, jointly and severally, shall on an after-tax basis agree to indemnify and hold harmless Buyer the Purchaser, its affiliates and its Affiliates (including the Alaska Entities after the Closing) assigns and their respective controlling personsdirectors, officers, directors employees and representatives (individuallyagents, "Buyer Indemnitee" as provided in this Article XIII, from and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, against any loss, liabilitydamage, claim, judgment, damagefine, cost or expense (includingexpense, without limitationincluding counsel fees and disbursements, interestreasonably incurred in connection with the investigation, penalties, and the reasonable fees, disbursements and expenses defense or settlement of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party any claim (collectively, a "LossesLoss"), arising, directly or indirectly from or in connection witharising out of:
(ia) any and all liabilities of the Company of any kind, nature or description, absolute or contingent, which arise with respect to or relate to any period or periods ending on or prior to the Closing Date, or exist as against the Company prior to or on the Closing Date or thereafter come into being or arise by reason of any state of facts existing, or any action taken or failure to take any required action, on or prior to the Closing Date, including without limitation any and all liabilities of the Company related to the Bull Litigation and any severance or other termination benefits relating to, resulting from or arising in respect of the termination of ▇▇▇▇ ▇▇▇▇▇ or any other employee of the Company prior to the Closing Date ("Severance Liability"), except to the extent that the same (A) were fully provided for (and accrued and applied as a current liability) in the Balance Sheet, or (B) were disclosed in this Agreement or in any Schedule hereto or any document referred to in such a Schedule; provided, however, that the exceptions contained in clauses (A) and (B) shall not apply to the Bull Litigation or to any Severance Liability;
(b) any breach of warranty or violation misrepresentation by any of the Sellers under Article III of this Agreement, or any misrepresentation in or omission from any certificate or other instrument delivered to the Purchaser by the Company or the Sellers pursuant to this Agreement or nonfulfillment of any representation covenant or warranty of any Seller contained in this Agreement as agreement on the part of the date such representation Company or warranty is made or deemed made the Sellers under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach the terms of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(iic) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellersall actions, the Alaska Entities suits, proceedings, claims, demands, assessments, penalties and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 judgments incident to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇foregoing.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity limitations set forth in Section 6.2(d) 10.2 hereof, Sellersfrom and after the Closing Date, SELLERS, jointly and severally, shall on an after-tax basis indemnify and indemnify, hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") fromharmless, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities defend BUYER from any form of insuranceand against all claims, indemnity or other source of reimbursementlosses, or other offsets or benefitsliabilities and obligations, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements attorneys' fees and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arisingwhich BUYER may receive, directly suffer or indirectly from incur arising out of, relating to or in connection with:
with any actions, suits or proceedings (other than any proceedings to prevent or limit the consummation of the Acquisition) related to (i) any inaccuracy in any of the representations and warranties, or breach or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability nonperformance of any of the Alaska Entities covenants, made by SELLERS herein, (Aii) for any Taxes of Sellersoperations and transactions occurring on or prior to the Closing Date and which involve the Assets transferred, the Alaska Entities Deposit Liabilities or the Office Loans being transferred to BUYER, (iii) the operations at the Office on or prior to the Closing Date, and (iv) the ownership of the Real Estate on or prior to the Closing Date. The obligations of SELLERS under this Section 8.3 shall be contingent upon BUYER giving SELLERS written notice (i) of receipt by BUYER of any process and/or pleadings in or relating to any actions, suits, or proceedings of the kinds described in this Section 8.3, including copies thereof, and (ii) of the assertion of any claim or demand relating to the foregoing, including, to the extent known to BUYER, the identity of the person(s) asserting such claim or making such demand and the nature thereof, and including copies of any correspondence or other writings relating thereto. All notices required by the preceding sentence shall be given within fifteen (15) days of the receipt by BUYER of any such process or pleadings or any oral or written notice of the assertion of any such claims or demands. SELLERS shall have the right to assume BUYER's defense in any such actions, suits, or proceedings through counsel selected by SELLERS (reasonably acceptable to BUYER), to compromise and/or settle the same and to prosecute any available appeals or review any adverse judgment or ruling that may be entered therein; provided, however, that BUYER shall have the right, at its own expense, to participate jointly with SELLERS in the defense of any such actions, suits or proceedings. Notwithstanding the right of BUYER to participate, SELLERS shall have the sole right to compromise and/or settle any such actions, suits or proceedings on such terms as SELLERS, in their Affiliates sole discretion, shall deem appropriate with respect to any Tax period issue involved in any such actions, suits or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 proceedings as to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shallwhich: (Aa) hold Buyer SELLERS have acknowledged the obligation to indemnify BUYER hereunder and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity the settlement is solely for cash (plus all associated expenses to remediate such sites and BUYER receives a complete release in compliance with applicable Environmental Lawsconnection therewith); andor (b) BUYER shall have declined to participate. The availability of indemnification pursuant to this Section 8.3 shall not prevent BUYER from seeking any other remedy otherwise available to BUYER, including remedies at law or in equity.
Appears in 1 contract
Sources: Branch Office Purchase and Assumption Agreement (Ohio Legacy Corp)
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the other terms and conditions of this Section 6.2Article VIII, including without limitation each Seller shall severally (in accordance with the limits on indemnity percentages set forth in on Section 6.2(d2.02 of the Disclosure Schedule) hereof, Sellers, and not jointly and severally, shall on an after-tax basis indemnify and hold harmless defend each of Buyer and its Affiliates (including the Alaska Entities after the ClosingCompany and any Subsidiary) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim Representatives (collectively, "Losses")the “Buyer Indemnitees”) against, arisingand shall hold each of them harmless from and against, directly and shall pay and reimburse each of them for, any and all Losses incurred or indirectly from sustained by, or in connection withimposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of:
(ia) any inaccuracy in or breach of any of the representations or warranties of Sellers contained in this Agreement or in any certificate or instrument delivered by or on behalf of Sellers or the Individual Guarantors pursuant to this Agreement, provided that, notwithstanding anything to the contrary set forth in this Section 8.02, in the event of an inaccuracy in or breach of any of the representations or warranties in Section 3.01 or 3.03(b) by a Seller, only the breaching Seller shall be responsible for indemnification with respect thereto;
(b) any breach or violation non-fulfillment of any representation covenant, agreement or warranty obligation to be performed by Sellers or the Individual Guarantors pursuant to this Agreement, provided that, notwithstanding anything to the contrary set forth in this Section 8.02, in the event of any breach or non-fulfillment of any covenant, agreement or obligation in Section 5.03, 5.04, 5.06 or 5.07 by a Seller contained in this Agreement as or an Individual Guarantor, only the breaching Seller (or the Seller that is owned directly or indirectly by the breaching Individual Guarantor) shall be responsible for indemnification with respect thereto;
(c) (i) all Taxes of the date such representation Company, or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereofrelating to the business of the Company, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreementfor all Pre-Closing Tax Periods; and
(ii) any Losses resulting from any liability the Company’s proportionate share (based on the Company’s ownership interest) of any of the Alaska Entities (A) for any Taxes of Sellersany Subsidiary, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 relating to the extent allocable business of any Subsidiary, for all Pre-Closing Tax Periods; (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (Biii) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid and all Taxes of any Person (other than any imposed on the Company arising under the principles of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successorsuccessor liability or by Contract, by contract, relating to an event or otherwise and transaction occurring before the Closing Date; or (Div) for the Company’s proportionate share (based on the Company’s ownership interest) of any Taxes attributable of any Person imposed on a Subsidiary arising under the principles of transferee or successor liability or by Contract, relating to an event or transaction occurring before the Closing Date;
(d) any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 brokerage, finder’s or to any excess loss account taken into income under Reg. ss. 1.1502-19, investment banker’s fee or commission owed in either case as a result of the consummation of connection with the transactions contemplated hereby.by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Sellers or the Company;
(ie) After the date hereofmatters set forth on Sections 3.16(a), Sellers, jointly 3.16(d) and severally, shall: 3.20(b) of the Disclosure Schedules; or
(Af) hold Buyer a violation by the Company or any Subsidiary of any state law that is not preempted by ERISA and each Alaska Entity harmless from is appicable to multiple employer welfare arrangements to which the Company or any Losses, incurred by such entity Subsidiary is determined to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses be a party prior to remediate such sites in compliance with applicable Environmental Laws); andthe Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Good Times Restaurants Inc)
Indemnification by Sellers. (a) If the Closing occursEach Seller, subject severally, hereby covenants and agrees that, to the terms and conditions of this Section 6.2fullest extent permitted by Legal Requirement, including without limitation the limits on indemnity set forth in Section 6.2(d) hereofsuch Seller will defend, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer Buyer, and its Affiliates (including the Alaska Entities after the Closing) Related Persons and Representatives, and their respective controlling persons, officers, directors and representatives (individuallydirectors, "Buyer Indemnitee" and collectivelymembers, "Buyer Indemnities") frommanagers, employees, agents, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penaltiesRepresentatives, and all successors and assigns of the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim foregoing (collectively, "Losses"the “Buyer Indemnified Persons”), arisingfor, directly or indirectly from and against any Adverse Consequences arising from or in connection with:
(i) any breach or violation Breach of any representation or warranty of any made by such Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(bA) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and, (B) the Schedules, (C) the certificates delivered pursuant to this Agreement, (D) any transfer instrument or (E) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(ii) any Losses Breach of any covenant, obligation or agreement of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(iii) any Liability of the Company based on facts, events or circumstances occurring before the Closing Date, or arising out of or in connection with the ownership and operation of the Company and the Assets and Business prior to the Closing, or facts and circumstances relating specifically to the Company and the Business existing at or prior to the Closing, respectively, whether or not such Liabilities or claims were known or unknown, absolute, accrued or contingent, on such date;
(iv) all Current Seller Liabilities and any Liability or Indebtedness of the Company not reflected on Schedule 2.4 or the Closing Statement;
(v) all Retained Liabilities;
(vi) all Current Litigation Matters;
(vii) any Liability of the Company to Sellers or any Related Person of Sellers;
(viii) any Liability of the Company resulting from, caused by, or arising in connection with the termination or assignment of any Excluded Contract; and
(ix) any claim by any Person for any brokerage or finder’s fee, commission or similar payment based upon any agreement or understanding alleged to have been made by such Person with any Seller in connection with this Agreement or any of the Contemplated Transactions.
(b) In addition to its indemnification obligations under Section 7.3(a), Seller hereby covenants and agrees that, to the fullest extent permitted by Legal Requirement, they will defend, indemnify and hold harmless the Buyer Indemnified Persons for, from and against any liability Adverse Consequences (including costs of cleanup, containment or other Remedial Action) arising out of acts or neglect occurring or conditions existing at or before Closing from or in connection with:
(i) any Environmental, Health and Safety Liabilities arising out of or relating to (A) the conduct of any activity by Seller, the Company, or their Related Persons, or any employee, contractor, agent or Representative thereof, or relating to the Business and Assets, including the Properties, of the Company; (B) the ownership or operation by any Person at any time on or prior to the Closing Date of any of the Alaska Entities Assets, including the Properties, or the Business of the Company, or (C) any Hazardous Materials or other contaminants that were present on the Properties or Assets at any time on or prior to the Closing Date; or
(ii) any bodily injury (including illness, disability or death, regardless of when such bodily injury occurred, was incurred or manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any Person or any Asset, including the Properties, in any way arising from or allegedly arising from (A) for any Taxes of SellersHazardous Activity conducted by Seller, the Alaska Entities and Company or their Affiliates Related Persons or any employee, contractor, agent or Representative thereof, or any other Person, with respect to the Business or the Assets, including the Properties; or (B) from any Tax period Hazardous Material that was (1) present or portion thereof ending suspected to be present on or before August 31, 1998 the Closing Date on or at the Properties (or for present or suspected to be present on any Tax period beginning before other property, if such Hazardous Material emanated or allegedly emanated from any Property and ending after August 31was present or suspected to be present on any Property, 1998 on or prior to the extent allocable Closing Date) or (determined in a manner consistent with Section 72) to Released or allegedly Released by Seller, the portion of such period beginning before and ending Company or their Related Persons, or any Person, on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than or at any of the Alaska Entities) Properties or Assets at any time on or prior to the Closing Date. Buyer, either directly or through the Company, will be entitled to control any Remedial Action, any Proceeding relating to a claim that any Environmental Law has been violated and any other Proceeding with respect to which indemnity may be sought under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign lawthis Section 7.3(b), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Meridian Waste Solutions, Inc.)
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity limitations set forth in Section 6.2(d) hereofSections 8.1 and 8.5, Sellerseach Seller hereby agrees to indemnify, jointly and severally, shall on an after-tax basis indemnify defend and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personsemployees, officers, managers, members and directors (each a “Buyer Indemnified Party”) harmless from and representatives (individuallyagainst any and all claims, "Buyer Indemnitee" demands, suits, proceedings, actions, hearings, actions, litigation, investigations, obligations, judgments, losses, penalties, fines, charges, settlement amounts, deficiencies, injunctions, orders, decrees, rulings, liabilities, damages, costs and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense expenses (including, without limitationbut not limited to, interest, penalties, and the reasonable attorneys’ fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "“Losses"), arising, directly ”) imposed upon or indirectly from incurred by any Buyer Indemnified Party as a result of or in connection withwith any of the following:
(i) any breach or violation of any representation or warranty of any made by such Seller contained in this Agreement as of or in the date certificate delivered by such representation or warranty is made or deemed made under Seller pursuant to Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and6.4(a)(ii);
(ii) the breach of, or default in the performance by such Seller of, any Losses resulting from any liability of any of the Alaska Entities covenant, agreement or obligation to be performed by such Seller pursuant to this Agreement;
(iii) (A) the ownership or operation of the Assets prior to the Effective Time, and (B) the Retained Liabilities;
(iv) the fire occurring on December 15, 2014, at the Casualty Well, including any costs or expenses incurred related thereto; or
(v) any responsibility for any Taxes offsite transportation, treatment, storage or disposal by such Seller or any of Sellersits Affiliates of Hazardous Substances produced from the Assets.
(b) Within thirty (30) calendar days after receipt by a Buyer Indemnified Party of notice of the commencement of an Action or other event giving rise to a claim by a Buyer Indemnified Party for indemnification under this Section 8.2(b) (a “Buyer Claim”), the Alaska Entities Party receiving such notice shall notify (the “Buyer Claim Notice”) Sellers in writing of the commencement of such Action or the assertion of such Buyer Claim; provided, however, that failure to give such notice shall not relieve Sellers of its obligations hereunder unless the Buyer Indemnified Party fails to deliver a proper Buyer Claim Notice prior to the date specified in this Section 8.2(b), and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 then only to the extent allocable that Sellers are materially prejudiced thereby. Sellers shall have the option, and shall notify Buyer Indemnified Party in writing within ten (determined in 10) Business Days after its receipt of a manner consistent with Section 7) to the portion Buyer Claim Notice of such period beginning before and ending on August 31its election, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shalleither: (A) hold to participate (at the expense of Sellers) in the defense of such Action or Buyer Claim (in which case the defense of such Action or Buyer Claim shall be controlled by Buyer Indemnified Party) or (B) to admit liability to said Buyer Claim and each Alaska Entity harmless take charge of and control the defense of such Action or Buyer Claim (at the expense of Sellers); provided, that pending such notice and assumption of defense, Buyer Indemnified Party may take such steps to defend against such Action or Buyer Claim as, in Buyer Indemnified Party’s good-faith judgment, are appropriate to protect its interests. If Sellers elect to control the defense, it will conduct the defense of the Action actively and diligently, and it will not compromise or settle the Action or Buyer Claim without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), except as provided in Section 8.4. Sellers shall not be entitled to assume or retain control of any Action or Buyer Claim (and Sellers shall be liable for the reasonable fees and expenses of counsel incurred by Buyer Indemnified Party in defending such Action) which seeks an order, injunction or other equitable relief or relief for other than money damages against Buyer Indemnified Party which Buyer Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any Lossesrelated claim for money damages. If Sellers fail to notify Buyer Indemnified Party of its election within the applicable response period, incurred by then Sellers shall be deemed to have elected not to control the defense of such entity Action or Buyer Claim. If Sellers elect to remove control the defense of any Action or decommission all underground storage tanks identified on Schedule 3.19 Buyer Claim, Buyer Indemnified Party shall have the right to employ separate counsel and participate in the defense of such Action or otherwise located on Buyer Claim, but the fees and expenses of such counsel shall be at the expense of Buyer Indemnified Party.
(c) Except as provided in Section 8.4, if Sellers do not control the defense of any property ownedAction or Buyer Claim, leased then (i) Buyer Indemnified Party may settle such Action or otherwise operated by any Alaska Entity Buyer Claim only with the prior written consent of Seller Indemnifying Party (plus all associated expenses not to remediate such sites in compliance with applicable Environmental Lawsbe unreasonably withheld, conditioned or delayed); and(ii) Buyer Indemnified Party may defend against the Action or Buyer Claim in a reasonable manner; (iii) Sellers shall reimburse Buyer Indemnified Party promptly and periodically for its reasonable third party costs incurred in defending against the Action or Buyer Claim (including reasonable attorneys’ fees and expenses reasonably incurred), upon presentation of invoices and related documentation supporting such third party costs; and (iv) Sellers will remain responsible for any Losses that Buyer Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Action or Buyer Claim to the extent provided in this Article VIII.
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions other provisions of this Section 6.2Article VIII, including without limitation from and after the limits on indemnity set forth in Section 6.2(d) hereofClosing, Sellers, Sellers hereby agree to jointly and severally, shall on an after-tax basis severally indemnify and hold harmless Buyer Purchaser, its Subsidiaries, their respective successors and permitted assigns and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personsRepresentatives (collectively, officersthe “Purchaser Indemnified Parties”) harmless from and against any and all losses, directors Liabilities, obligations and representatives damages (individually, "Buyer Indemnitee" and a “Loss” and, collectively, "Buyer Indemnities"“Losses”) from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection withfor:
(i) any inaccuracy in or breach or violation of any representation of the representations or warranty warranties of any Sellers contained in Article III (other than the representations and warranties that relate specifically to a Seller contained in Section 3.1(a), Section 3.2, Section 3.3, Section 3.4 and Section 3.5) or in any certificate or instrument delivered by or on behalf of Sellers or the Company pursuant to this Agreement as of the date that such representation or warranty is was made or deemed as if such representation or warranty was made under Section 8.1 on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(ii) those matters set forth on Schedule 8.2(a)(ii);
(iii) Company Taxes;
(iv) Transaction Expenses; and
(v) any breach of non-fulfillment of any covenant, agreement or obligation to be performed by the Sellers pursuant to this Agreement.
(b) Subject to the other than those provisions of this Article VIII, from and after the Closing, each Seller shall severally, and not jointly, indemnify and hold the Purchaser Indemnified Parties harmless from and against any and all Losses for:
(i) any inaccuracy in or breach of any of the representations and warranties of such Seller contained in Section 3.19 hereof3.1(a), which are solely covered Section 3.2, Section 3.3, Section 3.4 and Section 3.5 or in any certificate or instrument delivered by Section 6.2(b) below) or on behalf of such Seller pursuant to this Agreement, as of the date that such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a material specified date, the inaccuracy in or breach of any agreement or covenant or any material failure of any Seller which will be determined with reference to perform any of its obligations under this Agreement; andsuch specified date);
(ii) any Losses resulting from any liability breach or non-fulfillment of any of the Alaska Entities (A) for any Taxes of Sellerscovenant, the Alaska Entities and their Affiliates with respect agreement or obligation to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred be performed by such entity Seller pursuant to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andthis Agreement.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Tetra Technologies Inc)
Indemnification by Sellers. (a) If Each Seller shall severally and not jointly and only in proportion to such Seller's pro-rata share of ownership of the Company immediately preceding the Closing occursDate indemnify, subject defend and hold harmless 24/7 and its affiliates (including the Subsidiary and the Company), promptly upon demand at any time and from time to the terms time, against any and conditions of this Section 6.2all losses, liabilities, claims, actions, damages and expenses, including without limitation reasonable attorneys' fees and disbursements exceeding in the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim aggregate more than $50,000 (collectively, "Losses"), arising, directly or indirectly from arising out of or in connection with:
with any of the following: (ia) any breach material misrepresentation or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any warranty made by such Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of in any of the Alaska Entities Company's Documents; (Ab) for any Taxes material breach or nonfulfillment of Sellersany covenant or agreement made by such Seller in any of the Company's Documents; (c) the claims of any broker or finder engaged by any Seller other than Interactive Capital Partners LLC; (d) any customer claims relating to services provided prior to the Closing, to the extent not covered by insurance or reserved against in the Unaudited Balance Sheet; and (e) without in any manner limiting the foregoing, any liabilities or obligations of, or claims or causes of action against, the Alaska Entities and their Affiliates Company which arise with respect to or relate to any Tax period or portion thereof ending periods on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 prior to the extent allocable (determined Closing Date, except for those which are set forth or reserved against in the Unaudited Balance Sheet or are set forth in a manner consistent with Section 7) schedule hereto, or were incurred subsequent to February 28, 1998, in the ordinary course of business as theretofore conducted and are not materially adverse to the operations or prospects of the Company's business. In no event shall the total of any Seller's liability under this paragraph 11 be greater than the portion of such period beginning before and ending on August 31, 1998) the Merger Consideration deposited with the Escrow Agent pursuant to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities Escrow Agreement, as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign lawprovided by subparagraph 13(d), and as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable shown on Exhibit A to any deferred income attributable to any deferred income by Reg. ▇▇the Escrow Agreement.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Merger Agreement (24/7 Media Inc)
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersThe Sellers shall, jointly and severallyseverally (except for breaches of Section 5.06 and Section 5.09 as to which only the breaching Seller shall be liable), shall on an after-tax basis indemnify and hold harmless Buyer and its defend the Buyers, their respective Affiliates (including the Alaska Entities after including, following the Closing, the Company) and their respective controlling personsRepresentatives (the “Buyer Indemnitees”) against, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") shall hold them harmless from, any and will pay to any Buyer Indemnitee the amount all Liabilities, losses, damages, claims (net of any proceeds received by the Buyer Indemnities from any form of insuranceincluding third party claims), indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitationcharges, interest, penalties, Taxes, Actions, lawsuits, amounts paid in settlement, judgments, awards, fines, deficiencies, demands and expenses, including, to the reasonable feesextent applicable, disbursements and expenses of attorneysany special, accountants and other professional advisors) consequential, punitive or exemplary damages or losses, diminution in value, whether or not involving a third-party claim costs and expenses (including legal, consultant, accounting and other professional fees and fees and costs incurred in enforcing rights under this Section 9.02 and costs incurred in pursuing any insurance providers) (collectively, "“Losses")”) resulting from, arisingarising out of, directly based upon or indirectly from or incurred by any Buyer Indemnitee in connection with, or otherwise with respect to:
(ia) any breach or violation the failure of any representation and warranty or warranty of other statement by the Company or any Seller contained in this Agreement Agreement, the Transaction Documents, the Disclosure Schedules, or any certificate or other document furnished or to be furnished to the Buyers in connection with the transactions contemplated by this Agreement, to be true and correct in all respects as of the date such representation of this Agreement or warranty is made or deemed made under Section 8.1 as of the Closing Date;
(other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(bb) below) or a material any breach of any agreement or covenant or any material failure agreement of the Company or any Seller contained in this Agreement, the Transaction Documents, the Disclosure Schedules, or any certificate or other document furnished or to perform be furnished to the Buyers in connection with the transactions contemplated by this Agreement;
(c) any Liability based upon, resulting from or arising out of the business, operations, properties, assets or other obligations of the Company or any of its obligations under this AgreementAffiliates conducted, existing or arising on or prior to the Closing except those which are adequately reflected in or reserved against in the Company Financial Statements; and
(iid) any Losses resulting from fees, expenses or other payments incurred or owed by the Company or any liability of Seller to any of agent, broker, investment banker or other firm or person retained or employed by it in connection with the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates transactions contemplated by this Agreement; provided that this Section 9.02 shall not apply with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 Loss relating to Taxes to the extent allocable (determined in a manner consistent with Section 7) that indemnification payments for such Loss have been made pursuant to Article VI. Any and all Losses hereunder shall bear interest from the portion date incurred until paid at the rate of such period beginning before and ending on August 315% per annum, 1998) provided that the interest rate shall be increased to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) 12% per annum for any Taxes attributable amounts not paid within five (5) calendar days of a final determination that indemnification is required to any deferred income attributable to any deferred income by Reg. ▇▇be paid under this Agreement.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, Each Seller jointly and severallyseverally covenants and agrees that such Seller will indemnify, shall on an after-tax basis indemnify defend, protect and hold harmless Buyer and its Affiliates (including the Alaska Entities officers, partners, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times from and after the Closing) date of this Agreement from and their respective controlling persons, officers, directors and representatives (individually, "against all Claims incurred by Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net as a result of any proceeds received by the Buyer Indemnities or arising from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with:
(i) any breach of the representations and warranties made by the Sellers set forth herein or violation on the schedules or certificates delivered in connection herewith, (ii) any nonfulfillment of any representation covenant or warranty agreement on the part of the Sellers under this Agreement, (iii) the business, operations or assets of the Sellers or the Hotels prior to the Closing Date, or (iv) any liability under the Securities Act, the Securities Exchange Act or other Law or regulation, at common law or otherwise, arising out of or based upon (1) any untrue statement or alleged untrue statement of a material fact relating to any Seller contained in this Agreement as of any preliminary prospectus, the date such representation registration statement filed in connection with the Newco IPO (the "Registration Statement") or warranty is made any prospectus forming a part thereof, or deemed made any amendment thereof or supplement thereto (including any additional registration statement filed pursuant to Rule 462(b) under Section 8.1 (other than those contained in Section 3.19 hereofthe Securities Act), which are solely covered statement was provided or was based upon information or documents provided to Buyer or its counsel by Section 6.2(bthe Sellers or their counsel, or (2) below) any omission or alleged omission to state therein a material breach fact relating to the Sellers required to be stated therein or necessary to make the statements therein not misleading, which information was not provided to Buyer or its counsel by the Sellers or their counsel; provided, however, that such indemnity shall not inure to the benefit of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 Buyer to the extent allocable that such untrue statement (determined or alleged untrue statement) was made in, or such omission or alleged omission) occurred in, any preliminary prospectus and the Sellers provided, in a manner consistent with Section 7) writing, corrected information to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected Buyer or Newco for inclusion in the Net Working Capital of the Alaska Entities as of August 31final prospectus, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇such information was not so included.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If To the Closing occursextent specified herein, subject to the terms Sellers will indemnify and conditions hold the buyer harmless from and against any and all damage, loss, cost, deficiency, assessment, liability or other expense (including reasonable attorney's fees, costs of this Section 6.2court and litigation expenses, including without limitation if any) suffered, incurred or paid by the limits on indemnity Buyer as a result of:
(1) The material untruth, inaccuracy, breach or violation of any representation, warranty, covenant or other obligation of the Sellers set forth in Section 6.2(dor made in connection with this Agreement;
(2) hereof, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless The assertion against the Buyer and its Affiliates (including or any of the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net Companies of any proceeds received by material liability or obligation of any of the Buyer Indemnities from Companies or of any form claim relating to the operation of insurancethe Companies, indemnity businesses, prior to the Closing Date, whether absolute or other source contingent, matured or unmatured, known or unknown as of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense the Closing Date (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) customer claims or diminution in value, whether or not involving a third-party claim (collectively, "Losses"disputes), arising, directly or indirectly from or in connection with:
(i) any breach or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i3) After No claims for indemnification by Buyer shall be payable until the date hereofaggregate thereof reaches $50,000 and only claims in excess of $50,000 shall be subject to indemnification. The maximum amount payable to Buyers for Sellers' claims of indemnification shall be $500,000.
(b) The Buyer shall give written notice to the Sellers of any claim, Sellersaction, jointly suit or proceeding relating to the indemnity herein provided by Sellers not later than ten (10) days after Buyer has received notice thereof. Sellers shall have the right, at his option, to compromise or defend, at his own expense and severallyby his own counsel (which counsel shall be reasonably satisfactory to Buyer), shall: (A) hold any such action, suit or proceeding. Buyer and Sellers agree to cooperate in any such defense or settlement and to give each Alaska Entity harmless from any Losses, incurred by such entity other full access to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andinformation relevant thereto.
Appears in 1 contract
Sources: Purchase Agreement (Earthcare Co)
Indemnification by Sellers. (a) If the Closing occursEach Seller, subject severally, hereby covenants and agrees that, to the terms and conditions of this Section 6.2fullest extent permitted by Legal Requirement, including without limitation the limits on indemnity set forth in Section 6.2(d) hereofsuch Seller will defend, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer Buyer, and its Affiliates (including the Alaska Entities after the Closing) Related Persons and Representatives, and their respective controlling persons, officers, directors and representatives (individuallydirectors, "Buyer Indemnitee" and collectivelymembers, "Buyer Indemnities") frommanagers, employees, agents, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penaltiesRepresentatives, and all successors and assigns of the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim foregoing (collectively, "Losses"the “Buyer Indemnified Persons”), arisingfor, directly or indirectly from and against any Adverse Consequences arising from or in connection with:
(i) any breach or violation Breach of any representation or warranty of any made by such Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(bA) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and, (B) the Schedules, (C) the certificates delivered pursuant to this Agreement, (D) any transfer instrument or (E) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(ii) any Losses Breach of any covenant, obligation or agreement of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(iii) any Liability of the Companies based on facts, events or circumstances occurring before the Closing Date, or arising out of or in connection with the ownership and operation of the Companies and the Assets and Business prior to the Closing, or facts and circumstances relating specifically to the Companies and the Business existing at or prior to the Closing, respectively, whether or not such Liabilities or claims were known or unknown, absolute, accrued or contingent, on such date;
(iv) all Current Seller Liabilities and any Liability or Indebtedness of the Companies not reflected on Schedule 2.4 or the Closing Statement, but excluding the Bank Loans;
(v) all Retained Liabilities;
(vi) all Current Litigation Matters, including, but not limited to LGMG, LLC v. CAH Acquisition Company #4, Inc. d/b/a ▇▇▇▇▇▇▇▇▇ Regional Hospital, et. al., pending in Tulsa County, Oklahoma; and ▇▇▇▇▇▇ Enterprises, Inc. v. LGMG, LLC d/b/a Verifi Labs, pending in Tulsa County, Oklahoma;
(vii) any Liability of the Companies to Sellers or any Related Person of Sellers;
(viii) any Liability of the Companies resulting from, caused by, or arising in connection with the termination or assignment of any Excluded Contract;
(ix) any claim by any Person for any brokerage or finder’s fee, commission or similar payment based upon any agreement or understanding alleged to have been made by such Person with any Seller in connection with this Agreement or any of the Contemplated Transactions; and
(x) the PPM.
(b) In addition to its indemnification obligations under Section 7.3(a), Seller hereby covenants and agrees that, to the fullest extent permitted by Legal Requirement, they will defend, indemnify and hold harmless the Buyer Indemnified Persons for, from and against any liability Adverse Consequences (including costs of cleanup, containment or other Remedial Action) arising out of acts or neglect occurring or conditions existing at or before Closing from or in connection with:
(i) any Environmental, Health and Safety Liabilities arising out of or relating to (A) the conduct of any activity by Seller, the Companies, or their Related Persons, or any employee, contractor, agent or Representative thereof, or relating to the Business and Assets, including the Properties, of the Companies; (B) the ownership or operation by any Person at any time on or prior to the Closing Date of any of the Alaska Entities Assets, including the Properties, or the Business of the Companies, or (C) any Hazardous Materials or other contaminants that were present on the Properties or Assets at any time on or prior to the Closing Date; or
(ii) any bodily injury (including illness, disability or death, regardless of when such bodily injury occurred, was incurred or manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any Person or any Asset, including the Properties, in any way arising from or allegedly arising from (A) for any Taxes of SellersHazardous Activity conducted by Seller, the Alaska Entities and Companies or their Affiliates Related Persons or any employee, contractor, agent or Representative thereof, or any other Person, with respect to the Business or the Assets, including the Properties; or (B) from any Tax period Hazardous Material that was (1) present or portion thereof ending suspected to be present on or before August 31, 1998 the Closing Date on or at the Properties (or for present or suspected to be present on any Tax period beginning before other property, if such Hazardous Material emanated or allegedly emanated from any Property and ending after August 31was present or suspected to be present on any Property, 1998 on or prior to the extent allocable Closing Date) or (determined in a manner consistent with Section 72) to Released or allegedly Released by Seller, the portion of such period beginning before and ending Companies or their Related Persons, or any Person, on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than or at any of the Alaska Entities) Properties or Assets at any time on or prior to the Closing Date. Buyer, either directly or through the Companies, will be entitled to control any Remedial Action, any Proceeding relating to a claim that any Environmental Law has been violated and any other Proceeding with respect to which indemnity may be sought under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign lawthis Section 7.3(b), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Meridian Waste Solutions, Inc.)
Indemnification by Sellers. Sellers shall indemnify, defend and hold harmless Purchasers, their affiliates, shareholders, officers, directors, employees and agents ("Purchaser Indemnified Parties") after the Closing Date from and against any loss (including diminution in value of the Business), liability, obligation, Lien, damage (including any government penalty or fine), deficiencies, Claims, demands, judgments, settlements, fines, cost and expense (including reasonable legal and accounting fees incurred in defending, investigating, preparing or prosecuting any Claim, liability, loss or damage) ("Purchaser Losses") arising out of or resulting from:
(a) If the untruth or inaccuracy as of the date hereof or on the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses"), arising, directly or indirectly from or in connection with:
(i) any breach or violation Date of any representation or warranty of any Seller Sellers or its Affiliates contained in this Agreement or the Schedules hereto (or in any document, writing, or certificate delivered by Sellers or its Affiliates under Article VIII of this Agreement);
(b) any Excluded Liability, including, without limitation, those liabilities set forth in clauses (c), (d), (e), (h), (i) and (k) of this Section 10.2;
(c) any obligation or liability arising from Claims arising from warranty or other liability claims with respect to products, materials or services marketed, produced, invoiced, sold, performed or shipped by any Seller prior to the Closing Date;
(d) any Third-Party Claim resulting from or relating to the conduct of the Business by Sellers or their respective Affiliates prior to the Closing Date, including, without limitation, any Third-Party Claim, pending as of the date Closing Date, notwithstanding disclosure thereof in this Agreement or on the Most Recent Balance Sheet or the Schedules hereto, or any subsequent Third-Party Claim arising out of or relating to such representation pending matters or warranty any other event occurring prior to the Closing Date, unless such Purchaser Loss is made or deemed made a Seller Loss for which a Seller Indemnified Party is entitled to indemnification under Section 8.1 10.4;
(other than those contained e) any liability described in Section 3.19 hereof, which are solely covered 5.10(b);
(f) the failure by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its covenants or obligations under this Agreement; andhereunder;
(iig) any Losses resulting from violation of or liability arising under any liability of any bulk sales law in connection with the transfer of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andPurchased Assets;
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersEach Seller shall, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer Purchaser and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personseach of Purchaser's Affiliates, directors, officers, directors employees, attorneys, agents and representatives Representatives (individually, "Buyer Indemnitee" and collectively, the "Buyer IndemnitiesAffiliated Parties") from, and will pay to any Buyer Indemnitee the amount (net in respect of any proceeds received by and all claims, losses, damages, liabilities, declines in value of the Buyer Indemnities from any form of insuranceassets, indemnity or other source of reimbursementpenalties, or other offsets or benefitsinterest, including tax benefitscosts and expenses, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interestreasonable attorneys', penalties, accountants' and the reasonable fees, disbursements and expenses of attorneys, accountants consultants' fees and other professional advisors) or diminution in value, whether or not involving a third-party claim expenses (collectively, "LossesDamages"), arisingincurred by Purchaser or Purchaser's Affiliated Parties, directly together with interest on cash disbursements in connection therewith, at an annual rate equal to the Prime Rate then in effect, from the date such cash disbursements were made by Purchaser or indirectly from or any of their respective Affiliated Parties until paid by such Seller, in connection with, or resulting from, any or all of the following:
(ia) any Any breach or violation inaccuracy of any representation or warranty made by such Seller in Article V of this Agreement or in any document, schedule, exhibit or other instrument relating hereto;
(b) Any misrepresentation contained in any written statement or certificate furnished by such Seller pursuant to this Agreement or the Transactions;
(c) Any failure to perform or comply with any covenant, agreement or obligation of either Seller contained in this Agreement as or any document or other instrument contemplated by this Agreement;
(d) Any injury to persons or death or property damage resulting from or contributed to by any products designed, manufactured, sold or leased by any of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant Sellers or any material services performed by any of the Sellers if the accident, incident or occurrence giving rise to such claim, action, lawsuit or proceeding occurred prior to the Closing Date;
(e) With respect to any claim arising out of the failure of any Seller to perform comply with the bulk transfer or bulk sales laws of any of its obligations under this Agreementjurisdiction in accordance with Section 7.10; and
(iif) any Losses Liabilities of the Sellers resulting from any events occurring before or on the Closing Date, other than a liability of any of or obligation which is included in the Alaska Entities (A) for any Taxes of Assumed Liabilities. Sellers, the Alaska Entities and their Affiliates with respect ' obligations set forth in this Section shall not apply to any Tax period Damages that arise from or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable related to any deferred income attributable to any deferred income willful misconduct or gross negligence by Reg. ▇▇Purchaser.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions of this Buyer’s compliance with Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d8.2(b) hereof, Sellerseach Individual Seller hereby severally, but not jointly, up to his or its pro rata share of the Equity Consideration, and each Three Cities Seller, jointly and severallyseverally with all other Sellers, shall on an after-tax basis agrees to indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personssuccessors, officers, directors directors, employees, agents and representatives stockholders (individually, "Buyer Indemnitee" and collectively, "the “Buyer Indemnities") fromIndemnified Parties”), and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, hold them harmless against any loss, liability, claimdeficiency, damage, fine, penalty, judgment, damageaction, claim, expense or cost or expense (including, without limitation, interest, penalties, including reasonable legal fees and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisorsexpenses) or diminution in value, whether or not involving a third-party claim (collectively, "“Losses"”), arisingwhich any of the Buyer Indemnified Parties may suffer, directly sustain or indirectly from or in connection with:
become subject to, as a result of (i) any breach or violation of any representation of the representations and warranties contained in Article III or warranty in any exhibits, schedules, certificates or other documents delivered or to be delivered by or on behalf of Sellers, the Company or its Subsidiaries pursuant to the terms of this Agreement or the Escrow Agreement; (ii) any Seller breach of, or failure to perform, any agreement of Sellers contained in this Agreement as of or the date such representation or warranty is made or deemed made under Section 8.1 Escrow Agreement; (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(biii) below) or a material any breach of any agreement covenant contained in Article V; (iv) any success fee paid to PB Capital Corporation by the Company or covenant its Subsidiaries in connection with the Transactions or (v) except to the extent reflected in the Closing Balance Sheet, any material failure Taxes of any Seller to perform the Company or any of its obligations under this Agreement; and
(ii) any Losses resulting from any liability of any of the Alaska Entities Subsidiaries for (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax taxable period or portion thereof ending on or before August 31, 1998 the Closing Date and (or for any Tax period B) the pre-Closing portion of all taxable periods beginning before and ending after August 31the Closing Date; provided, 1998 however, that the Taxes attributable to the extent allocable any partial period described in clause (B) of this Section 8.2(a) shall be determined in a manner consistent with Section 7prior practice and by means of a closing of the books and records of the Company and any of its Subsidiaries, as the case may be, as of the close of business on the Closing Date, provided that exemptions, allowances or deductions that are calculated on an annual basis (including, but not limited to, depreciation an amortization deductions) shall be allocated between the period ending on the Closing Date and the period after the Closing Date in proportion to the portion number of days in such period beginning before and ending on August 31period; provided, 1998) further, that any payments made prior to or at the Closing pursuant to the extent such Taxes are not reflected in provisions of Section 1.3 hereof shall be deemed to occur immediately following the Net Working Capital of the Alaska Entities as of August 31Closing (collectively, 1998, (B) “Buyer Losses”). Notwithstanding any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of statethis Agreement to the contrary, local, or foreign law), Sellers’ liability hereunder shall be no greater than such liability would have been (i) had the Tax Accounting Change not been made as a transferee or successor, by contract, or otherwise provided in Section 5.8(d) and (Dii) had the payments made pursuant to Section 1.3 been made prior to the Closing Date.
(b) Sellers shall be liable to a Buyer Indemnified Party under Section 8.2(a) for any Taxes attributable Buyer Losses only if a Buyer Indemnified Party delivers to Sellers’ Representative written notice, setting forth in reasonable detail the identity, nature and amount of the Buyer Losses prior to the expiration of the applicable indemnification period; provided, however, that any claim first asserted in writing by a Buyer Indemnified Party with reasonable specification prior to the expiration of the applicable indemnification period shall not thereafter be barred by the applicable indemnification period; and provided, further that with respect to any deferred income attributable claim relating to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 Taxes as to which Buyer, the Company or a Subsidiary has received notice from the applicable Taxing Authority prior to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result the expiration of the consummation applicable statute of limitations, the transactions contemplated herebyBuyer Indemnified Party shall have at least thirty (30) days after receipt of such notice to deliver written notice to the Sellers’ Representative.
(ic) After Upon payment to a Buyer Indemnified Party, the date hereof, Sellers, jointly Seller charged with such payment (whether out of the Escrow Funds or otherwise) shall have a right of joint and severally, shall: several contribution and indemnity from the remaining Sellers therefore (A) hold Buyer and provided that in no event shall the liability of each Alaska Entity harmless from any Losses, incurred by such entity to remove Individual Seller exceed his or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Lawsits pro rata share of the Equity Consideration); and.
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the other terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereofARTICLE VIII, Sellers, jointly and severally, shall on an after-tax basis indemnify and hold harmless defend each of Buyer and its Affiliates (including the Alaska Entities after the ClosingCompany) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim Representatives (collectively, the "LossesBuyer Indemnitees")) against, arisingand shall hold each of them harmless from and against, directly and shall pay and reimburse each of them for, any and all Losses incurred or indirectly from sustained by, or in connection withimposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of:
(ia) any inaccuracy in or breach or violation of any representation of the representations or warranty warranties of any Seller Sellers and the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of Sellers pursuant to this Agreement, as of the date such representation or warranty is was made or deemed as if such representation or warranty was made under Section 8.1 on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Sellers pursuant to this Agreement (other than those any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in ARTICLE VI, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to ARTICLE VI);
(c) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not deducted from the Purchase Price in the determination of the Closing Date Payment pursuant to Section 2.04(a)(i);
(d) any inaccuracy in, or breach of, the representations and warranties of Sellers contained in Section 3.19 hereof, which are solely covered by Section 6.2(b3.13(b) below(Inventory) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement;
(e) any inaccuracy in, or breach of, the representations and warranties of Sellers contained in Section 3.14 (Accounts Receivable) of this Agreement;
(1) Case No. 3:15-cv-13200-MGM, Polyzen, Inc. v. Dielectrics, Inc., in the United States District Court, District of Massachusetts, and (2) Case No. 3:17-cv-30128-MGM, Polyzen, Inc. v. Dielectrics, Inc., in the United States District Court, District of Massachusetts (Springfield), along with any subsequently filed cases that arise from or relate to the same circumstances as the foregoing (collectively, the “Litigation”);
(g) any obligation arising out of section 2(b) of a Key Employees Non-competition, Non-solicitation, and Non-disclosure Agreements, in which case Sellers’ obligation shall be to pay 75% of thereunder (“Seller Portion”); and
(iih) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇Excluded Assets.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, Sellers shall jointly and severally, shall on an after-tax basis severally indemnify and hold harmless defend Buyer and its Affiliates (including the Alaska Entities after including, following the Closing, the Company) and their respective controlling personsstockholders, members, managers, officers, directors directors, employees, agents, successors and representatives assigns (individually, the "Buyer Indemnitee" and collectively, "Buyer IndemnitiesIndemnitees") against, and shall hold them harmless from, any and will pay to any Buyer Indemnitee the amount all losses, damages, claims (net of any proceeds received by the Buyer Indemnities from any form of insuranceincluding third party claims), indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitationcharges, interest, penalties, and the reasonable feesTaxes, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim costs and expenses (including legal, consultant, accounting and other professional fees, costs of sampling, testing, investigation, removal, treatment and remediation of contamination and fees and costs incurred in enforcing rights under this Section 9.2) (collectively, "Losses")) resulting from, arisingarising out of, directly or indirectly from or incurred by any Buyer Indemnitee in connection with, or otherwise with respect to:
(i) any breach or violation the failure of any representation and warranty or warranty of any Seller other statement by Sellers contained in this Agreement Agreement, the Schedules, or any other document furnished or to be furnished to Buyer in connection with the transactions contemplated by this Agreement, to be true and correct in all respects as of the date such representation of this Agreement or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach as of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; andthe Closing Date;
(ii) any Losses resulting from any liability breach of any covenant or agreement of Sellers contained in this Agreement, the Alaska Entities Schedules, or any other document furnished or to be furnished to Buyer in connection with the transactions contemplated by this Agreement;
(iii) any fees, expenses or other payments incurred or owed by Sellers or the Company to any agent, broker, investment banker or other firm or person retained or employed by it in connection with the transactions contemplated by this Agreement;
(iv) any Pre-Closing Environmental Liabilities and any Action arising out of or in connection therewith; provided that (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates this Section 9.2 shall not apply with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 Loss relating to Taxes to the extent allocable (determined in a manner consistent with that indemnification payments for such Loss have been made pursuant to Section 7) to the portion of such period beginning before 9.8, and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) for purposes of this Section 9.2, the representations and warranties herein shall be deemed to have been made without any Taxes payable qualifications as to Knowledge or materiality and, accordingly, all references herein and therein to "Knowledge," "material," "in all material respects" and similar qualifications as to Knowledge and materiality shall be deemed to be deleted therefrom (except where any such provision requires disclosure of lists of items of a result material nature or above a specified threshold). Any and all Losses hereunder shall bear interest from the date incurred until paid at the rate of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby8% per annum.
(ib) After the date hereof, Sellers, jointly and severally, shall: Sellers shall not be liable for any Loss or Losses pursuant to Section 9.2(a)(i) (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and"
Appears in 1 contract
Indemnification by Sellers. (a) If Except as otherwise limited by this Article 9, and, unless specifically waived by the Party to be indemnified hereunder, from and after the Closing occursDate, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, SellersStockholders, jointly and severally, shall on an after-tax basis indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) Landry's, Purchaser and their respective controlling persons, officers, directors directors, s▇▇▇▇▇▇▇▇s and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities permitted assigns from any form of insuranceand all liabilities, indemnity or other source of reimbursementlosses, or other offsets or benefitsdamages, including tax benefitsclaims, obtained) ofcosts and expenses, any lossinterest, liabilityawards, claim, judgment, damage, cost or expense judgments and penalties (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses legal costs) suffered or incurred by any of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim them (collectively, hereinafter "Losses"), arising, directly arising out of or indirectly resulting from or in connection with:
(i) any breach or violation of any representation or warranty of any Seller contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or representation, warranty, covenant or agreement by Sellers or Stockholders contained herein or in any material failure of Related Document or in any Seller to perform any of its obligations exhibit, schedule, document or certificate delivered under this Agreement; and
Agreement or any Related Document, (ii) any Losses resulting claim asserted by any third party that, assuming the truth thereof, would constitute a breach by Sellers or Stockholders of this Agreement, (iii) the transfer of beneficial ownership of the Stock to Metro National or Kimberley prior to the Closing including any claims for dissenter's ▇▇▇▇▇▇, ▇r (iv) the performance (or lack of performance) by any Seller of any contractual obligation that is performable by it on or prior to the Closing Date.
(b) Without limiting the effect of (a) above, Indemnitor, defined below, agrees to indemnify and hold harmless Landry's and Purchaser from any liability and all Losses arising from or in an▇ ▇▇▇ ▇▇lating to: (i) the 1999 Settlement, 2000 Restructuring and the 2001 Exchange including witho▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇osses from any action or proceeding under federal or state securities laws; (ii) all out-of-pocket Losses arising out of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 DOL investigation commenced prior to the extent allocable date hereof (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in Losses pertain to acts or omissions occurring prior to the Net Working Capital Closing Date); (iii) any severance payments due to any employee of the Alaska Entities as of August 31, 1998, (B) Corporation under any Taxes plan or agreement in effect prior to the Closing Date which are payable as a result of the Section 338(h)(10Acquisition; (iv) Election (as hereinafter defined)),(C) the note obligation for the unpaid Taxes Corporation's human resources system (unless such note is cancelled and such system returned); (v) liabilities relating to the Corporations' gift certificate and gift card programs for gift certificates and gift cards sold prior to the Closing Date, but only to the extent that such liability is in excess of the balance previously accrued by the Corporation on the Latest Balance Sheet for the Corporation's gift card program; (vi) liabilities relating to the Corporation's failure to file a Form 5500, 5500-C or 5500-R for any Person Benefit Plan for any period prior to Closing; (vii) any liability for rents and other than obligations in excess of the Lease Termination Fee arising from the lease of the office space at 820 Gessner; (viii) any Loss arising from matters set forth on Schedule ▇.▇(▇)(viii); and (ix) any Loss resulting from the failure to have a Certificate of Occupancy from the City of Houston in connection with the restaurant known as "Salt 15." Any indemnification provided under this subsection (i) shall be unlimited and shall not be subject to any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision limitations set forth in Section 9.6 of state, local, or foreign law), as a transferee or successor, by contract, or otherwise this Agreement; and (Dii) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇shall not be counted toward determining whether or not the Threshold Amount or the Indemnity Cap set forth in Section 9.6 has been satisfied.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, The Sellers, jointly and severally, shall on an after-tax basis hereby indemnify and agree to defend and hold harmless Buyer from and its Affiliates against any and all losses, obligations, deficiencies, liabilities, claims (including the Alaska Entities after the Closing) whether actual or threatened), damages, costs and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense expenses (including, without limitation, interest, penaltiesthe amount of any settlement entered into pursuant hereto, and the all reasonable fees, disbursements and expenses of attorneys, accountants legal fees and other professional advisorsexpenses incurred in connection with the investigation, prosecution or defense of any matter indemnified pursuant hereto or the enforcement of this Agreement) ("LOSSES") which Buyer or diminution in value, whether or not involving a third-party claim any of its respective Affiliates (collectively, with the Buyer, the "LossesBUYER INDEMNIFIED PARTIES" and each, individually, a ")BUYER INDEMNIFIED PARTY") may sustain, arisingsuffer or incur and which arise out of, directly are caused by, relate to, or indirectly result or occur from or in connection with:
with (ia) any breach or violation misrepresentation of a fact contained in any representation or warranty of any Seller contained in this Agreement as Agreement, (b) the breach by any Seller of any warranty or covenant made by any of them in this Agreement, (c) (i) any unpaid federal, state, local and foreign Taxes of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, Business for any Pre-Closing Tax Periods and the portion through the Closing Date for any Tax period which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and
does not end on the Closing Date and (ii) any Losses resulting from any liability of any of the Alaska Entities (A) for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Tax period Liability or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) obligation for the unpaid Taxes of any Person (other than any of the Alaska Entities) Business including under Reg. ss. Treasury Regulation Section 1.1502-6 (or any similar corresponding provision of state, local, local or foreign law), Tax Law) as a transferee or successor, by contractcontract or otherwise, (d) any liability or otherwise and (D) for obligation of any Taxes attributable of Sellers arising out of or relating to any deferred income attributable to of the Excluded Liabilities, including without limitation, any deferred income by Regamounts which may be due under the Kaiser Employment Agreement and any other agreement with ▇▇▇▇▇▇ ▇. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to ▇▇, (e) any excess loss account taken into income under Reg. ss. 1.1502-19, in either case Losses incurred as a result of Sellers' waiver or noncompliance with the consummation bulks sales laws, and (f) any claims, charges, suits or legal proceedings against Buyer or its Affiliates by or on behalf of the transactions contemplated hereby.
any employee as a result of (i) After illegal or unlawful misconduct on or before the date hereofClosing Date, Sellersincluding without limitation, jointly the proceedings disclosed on the schedules annexed to this Agreement and severally(ii) any retention agreement or retention memoranda agreed to with, shall: (A) hold Buyer and each Alaska Entity harmless from or issued in favor of, any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); andemployee.
Appears in 1 contract
Indemnification by Sellers. (a) If Notwithstanding the Closing occursClosing, and regardless of any investigation made at any time by or on behalf of Purchaser or any information Purchaser may have, but subject to the terms and conditions of this Section 6.2Article X, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, each Seller jointly and severallyseverally (except with respect to any misrepresentation or omission with respect to Sections 4.02, 4.05 and Section 4.12 and the third sentence of Section 4.04 as they relate to an individual Seller and not the Company) which shall on an after-tax basis be several and not joint) agrees to indemnify and to hold harmless Buyer and Purchaser, its Affiliates (including the Alaska Entities after the Closing) and their respective controlling personsshareholders, officers, directors directors, and representatives employees (individuallythe "Indemnified Purchaser Parties") harmless from and against and in respect of any losses (including lost revenues), damages, costs, expenses (including costs of investigations and reasonable attorney fees arising out of Third Party Claims), claims, suits, demands, judgments and diminutions in value suffered or incurred (each a "Buyer IndemniteeLoss" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, collectively "Losses")) by Purchaser resulting from any of the following; provided, arising, directly however that for purposes of this Article X the Losses of Purchaser resulting from the matters referred to in clause (i) or indirectly from or in connection withclause (iv) below shall be the amount of such Losses multiplied by the Purchased Percentage:
(i) any Any obligation or liability of the Company for Taxes, whether or not known or asserted at or prior to the Closing, to the extent that such liability did not result in a reduction in the Purchase Price at the Closing pursuant to Section 2.03 hereof;
(ii) Any misrepresentation or breach or violation of any representation or warranty of the Company or any Seller contained in this Agreement as of Agreement, the date such representation Schedules or warranty is made Exhibits hereto, or deemed made under Section 8.1 (other than those contained the Escrow Agreement, or in Section 3.19 hereof, which are solely covered any closing certificate delivered by Section 6.2(b) below) the Company or a material breach of any agreement or covenant or any material failure of any Seller to perform Purchaser pursuant to Article VII hereof;
(iii) Any breach or non-fulfillment of any covenant or agreement on the part of its obligations the Company or any Seller under this AgreementAgreement to be performed on or following the Closing Date;
(iv) Any and all amounts owed to Bay Area Cellular Telephone Company which are not included as a liability in the Working Capital Adjustment that related to the period prior to the Closing Date, including amounts payable in respect of interconnect fees (the "BAC Obligation"); and
(iiv) All costs and expenses (including reasonable attorneys' fees) incurred by Purchaser in connection with any Losses resulting from any liability of action, suit, proceeding, demand, assessment or judgment incident to any of the Alaska Entities (A) for any Taxes of Sellers, matters Purchaser is indemnified against by the Alaska Entities Company and their Affiliates with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined Sellers in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇this Agreement.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result of the consummation of the transactions contemplated hereby.
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Securities Purchase Agreement (Dobson Communications Corp)
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the other terms and conditions of this Section 6.2Article IX, including without limitation the limits on indemnity set forth in Section 6.2(d) hereof, Sellers, Sellers (jointly and severally, ) shall on an after-tax basis indemnify and hold harmless Buyer defend each of Buyer, Parent and its their Affiliates (including the Alaska Entities after the Closing) and their respective controlling persons, officers, directors and representatives (individually, "Buyer Indemnitee" and collectively, "Buyer Indemnities") from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any loss, liability, claim, judgment, damage, cost or expense (including, without limitation, interest, penalties, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) or diminution in value, whether or not involving a third-party claim (collectively, "Losses")the “Buyer Indemnitees”) against, arisingand shall hold each of them harmless from and against, directly and shall pay and reimburse each of them for, any and all Losses incurred or indirectly from sustained by, or in connection withimposed upon, any Buyer Indemnitees based upon, arising out of, with respect to, or by reason of:
(i) any inaccuracy in or breach or violation of any representation of the representations or warranty warranties of any Seller the Company contained in this Agreement as of the date such representation or warranty is made or deemed made under Section 8.1 (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(b) below) or a material breach of any agreement or covenant or any material failure of any Seller to perform any of its obligations under this Agreement; and;
(ii) any Losses resulting from any liability breach or non-fulfillment of any of covenant, agreement, or obligation to be performed by the Alaska Entities Company pursuant to this Agreement;
(iii) any Excluded Liabilities which remain unpaid after Closing and are not adjusted for at the Closing pursuant to Section 1.01(b);
(iv) (A) all Taxes (or the non-payment thereof) of the Company for any Taxes of Sellers, the Alaska Entities and their Affiliates with respect to any Pre-Closing Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998Period, (B) all Taxes of any Taxes payable as member of an affiliated, consolidated, combined, or unitary group of which the Company (or any of its respective predecessors) is or was a result of member on or prior to the Section 338(h)(10Closing Date, including pursuant to Treasury Regulation §1.1502-6 under the Code or any analogous or similar Law, and (C) Election (as hereinafter defined)),(C) for the unpaid any and all Taxes of any Person (other than any of the Alaska EntitiesCompany) under Reg. ss. 1.1502-6 (or any similar provision of state, local, or foreign law), imposed on the Company as a transferee or successor, by contractContract or pursuant to any Law which Taxes relate to an event or transaction occurring before the Closing;
(v) any failure of the Company to comply with applicable state and local Laws controlling the cultivation, harvesting, production, handling, storage, distribution, sale or possession of cannabis or medical marijuana, including licensing requirements applicable to the Company if and only if (A) such failure was caused by the acts or omissions of any employees or agents of the Company, or otherwise and (DB) for such failure was caused by the acts or omissions of any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 employees or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case as a result agents of the consummation Buyer or the Parent which were and had been providing services to the Company prior to the Closing, which acts or omissions were approved in advance in writing by any employee or agent of the transactions contemplated herebyCompany;
(vi) any fraud, intentional or knowing misrepresentation or willful breach by the Company.
(b) Subject to the other terms and conditions of this Article IX, each Seller (severally and not jointly) shall indemnify and defend each of the Buyer Indemnitees against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, any Buyer Indemnitees based upon, arising out of, with respect to, or by reason of:
(i) After any inaccuracy in or breach of any of the date hereofrepresentations or warranties of such Seller contained in this Agreement;
(ii) any breach or non-fulfillment of any covenant, Sellersagreement, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred or obligation to be performed by such entity Seller pursuant to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on this Agreement;
(iii) any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses failure of the Company to remediate such sites in compliance comply with applicable Environmental Lawsstate and local Laws controlling the cultivation, harvesting, production, handling, storage, distribution, sale or possession of cannabis or medical marijuana, including licensing requirements applicable to the Company if and only if such failure was caused by the acts or omissions of any agents or the employees of the Buyer or the Parent which were and had been providing services to the Company prior to the Closing, other than such acts or omissions that were approved in advance in writing by an employee or agent of the Company (each, a “Buyer Pre-Closing Claim”);
(iv) all Taxes (or non-payment thereof) of such Seller; or
(v) any fraud, intentional or knowing misrepresentation or willful breach by such Seller. The indemnification obligations of Sellers under Section 9.01(a) will be joint and several in all matters related to the Company, and the indemnification obligation of the Sellers under Section 9.01(b) will be several, but not joint. As used in this Agreement, “Losses” means all losses, Liabilities, deficiencies, damages (including consequential damages and lost profits), fines, penalties, claims, costs and expenses (including, amounts paid (i) pursuant to a judgment (entered into or determined in accordance with, or that is entered into or determined under circumstances that do not constitute a breach of, this Agreement), or a compromise or settlement entered into in accordance with this Agreement or (ii) in enforcing any right to indemnification hereunder), court costs and fees (including reasonable legal and accounting fees and disbursements, reasonable witness fees); andprovided, however, that “Losses” will not include punitive damages, except to the extent such punitive damages are payable to a third party in a claim for which indemnification is permitted hereunder.
Appears in 1 contract
Indemnification by Sellers. (a) If the Closing occurs, subject Subject to the terms and conditions of this Section 6.2, including without limitation the limits on indemnity limitations set forth in Section 6.2(d) hereof9.4, Sellers, Sellers shall jointly and severally, shall on an after-tax basis severally indemnify and hold harmless Buyer and its Affiliates (including the Alaska Entities after the Closing) Buyers and their respective controlling personsAffiliates and their respective directors, officers, directors employees and representatives (individually, "the “Buyer Indemnitee" and collectively, "Buyer Indemnities"Indemnified Parties”) from, and will pay to any Buyer Indemnitee the amount (net of any proceeds received by the Buyer Indemnities from any form of insurance, indemnity or other source of reimbursement, or other offsets or benefits, including tax benefits, obtained) of, any against all loss, liability, claim, judgment, damage, cost damage or expense (including, without limitation, interest, penalties, and the including reasonable fees, disbursements fees and expenses of attorneys, accountants and other professional advisorscounsel) or diminution in value(collectively referred to as “Losses”), whether or not involving a third-third party claim (collectivelyor among the Parties to this Agreement, "Losses")any of the Buyer Indemnified Parties may suffer, arising, directly sustain or indirectly from become subject to as a result of or in connection with:
with (ia) except as set forth in clause (c) and (d) below, any breach or violation of any representation or warranty of Sellers contained in this Agreement (including any Seller breach of any representation or warranty of Sellers contained in this Agreement as if it had been made again at and as of the date such representation or warranty is made or deemed made under Section 8.1 Closing), (other than those contained in Section 3.19 hereof, which are solely covered by Section 6.2(bb) below) or a material any breach of any agreement or covenant or any material failure agreement of any Seller Sellers contained herein, (c) the claims, litigation or proceedings set forth on Schedule 3.12 (collectively, “Known Claims”), if and solely to perform any the extent that the aggregate Losses resulting from or arising in connection with all such Known Claims exceed (i) the aggregate amount reserved therefor as of its obligations under this Agreement; and
December 31, 2013 in the financial statements of the Companies, as set forth on Schedule 9.2, plus (ii) the amount of all cash contributions or other increases (net of any decreases) (any such increases or decreases, to the extent permitted by this Agreement, Applicable Accounting Principles and applicable Law) to such reserves prior to the Closing (including as contemplated pursuant to Section 5.1(c)), and (d) the claims, litigation or proceedings in substantially the same nature as the Known Claims that arise after the date hereof and through the Closing (collectively, “Unknown Claims”), if and solely to the extent that the aggregate Losses resulting from any liability of any or arising in connection with all such Unknown Claims exceed the aggregate amount reserved therefor as of the Alaska Entities (A) Closing Date in the financial statements of the Companies for such period. For the avoidance of doubt, any Taxes of Sellers, claim for indemnification by the Alaska Entities and their Affiliates Buyer Indemnified Parties with respect to any Tax period or portion thereof ending on or before August 31, 1998 (or for any Tax period beginning before and ending after August 31, 1998 to the extent allocable (determined in a manner consistent with Section 7) to the portion of such period beginning before and ending on August 31, 1998) to the extent such Taxes are not reflected in the Net Working Capital of the Alaska Entities as of August 31, 1998, (B) any Taxes payable as a result of the Section 338(h)(10) Election (as hereinafter defined)),(C) for the unpaid Taxes of any Person (other than any of the Alaska Entities) under Reg. ss. 1.1502-6 (Known Claims or any similar provision of state, local, Unknown Claims shall be brought pursuant to Section 9.2(c) or foreign lawSection 9.2(d), as a transferee or successorapplicable, by contract, or otherwise and (D) for any Taxes attributable to any deferred income attributable to any deferred income by Reg. ▇▇.▇▇. 1.1502-13 and 1.1502-14 or to any excess loss account taken into income under Reg. ss. 1.1502-19, in either case shall not be pursued as a result claim for a breach of the consummation of the transactions contemplated herebya representation or warranty pursuant to Section 9.2(a).
(i) After the date hereof, Sellers, jointly and severally, shall: (A) hold Buyer and each Alaska Entity harmless from any Losses, incurred by such entity to remove or decommission all underground storage tanks identified on Schedule 3.19 or otherwise located on any property owned, leased or otherwise operated by any Alaska Entity (plus all associated expenses to remediate such sites in compliance with applicable Environmental Laws); and
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (RCS Capital Corp)