Indemnifications. Seller shall indemnify, save and hold harmless Buyer, its Affiliates, directors, officers, shareholders, employees and agents (for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent of entitlement for indemnification, may be herein referred to as a “Buyer Indemnified Party”) from and against all costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses (whether or not arising out of Third Party Claims), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sections.
Appears in 1 contract
Indemnifications. (a) Subject to the terms of Section 11.3 and Section 11.2(c), and solely for any claims made during the duration of the Survival Period, Seller shall indemnify, save defend and hold harmless Buyer, its Affiliates, directors, officers, shareholders, employees Buyer and agents (for purposes any nominee or designee of this Article VI, all of which shall constitute “Buyer” and to the extent of entitlement for indemnification, may be herein referred to as a “Buyer Indemnified Party”) from and against all costsany claims, causes of action, judgments, losses, liabilities, obligationspenalties, damages, lawsuits, claims, demands, costs and expenses (whether or not arising out of Third Party Claims)expenses, including without limitation reasonable attorneys’ fees and all amounts reasonably paid other costs of defense (collectively, but only as used in investigation, defense or settlement of any of the foregoing (hereinthis Article XI, “Damages”), actually suffered or incurred or suffered by Buyer through the end or any such nominee and arising by reason of the Survival Period and caused by (i) any breach of any representation representation, warranty or warranty made covenant by Seller, or (ii) any Liabilities directly associated with the Assets arising in connection with circumstances or events which first arise or accrue before the Closing Date, provided however this indemnification expressly excludes any Damages arising out of or related to, to the extent disclosed in the Environmental Reports, the presence, absence or Release of any Hazardous Materials on, in, under, above or from the Property or any adjoining or neighboring property, and compliance with Environmental Laws.
(b) Buyer shall indemnify, defend and hold harmless Seller and any nominee or designee of Seller from and against any Damages, suffered or incurred by Seller in this Agreement; or any such nominee or designee and arising by reason of solely for any claims made during the duration of the Survival Period, (iii) any breach of any representation, warranty or covenant or agreement made by Seller in this Agreement which requires performance after Closing; Buyer, or (iiiii) any Liabilities directly associated with the operations of Assets arising in connection with circumstances or events which first arise or accrue on or after the Company prior to Closing. Closing Date.
(c) Notwithstanding anything to the contrary hereinin the foregoing indemnifications in Section 11.2(a) and Section 11.2(b) above, or anything to the contrary in this Agreement, neither Buyer nor Seller will have no liability may recover any Damages under Section 11.2(a)(ii) or Section 11.2(b)(ii), as applicable, until such claiming party has exhausted all of its legal remedies provided under the Master Lease, Master Transaction Agreement, Prime Leases, or Office Building Leases, and by any of the Insurance Policies or any applicable insurance coverage, but only to the extent legally available to such party (with the ability to submit a claim against the other party as described in the following sentence). Any such recovery by Buyer of Damages (i) shall be solely to the extent that Buyer cannot be made whole under (x) the Master Lease, Master Transaction Agreement, Prime Leases, or Office Building Leases, in each case at such party’s sole cost and expense, and (y) any of the Insurance Policies or any applicable insurance coverage, provided that in each instance Buyer and Seller shall be permitted to submit a claim against the other party for indemnification purposes of submitting such claim during the Survival Period and, if submitted within the Survival Period shall survive thereafter until resolved, and (ii) such Damages shall be limited pursuant to Section 11.3 below. If the party submitting a claim against the other party pursues its remedies as described in Section 11.2(c)(i), and such pursuit extends beyond the Survival Period, then such claiming party shall not later be restricted from exercising its rights for such claim, and the party to which such claim is submitted against shall not be excused from its obligations hereunder. The foregoing provisions in this Section 11.2(c) shall not apply to any Damages Buyer or otherwiseSeller claim under Section 11.2(a)(i) or Section 11.2(b)(i), respectively, which Buyer and Seller may recover pursuant to this Agreement, subject to any other limitations under this Agreement including the Survival Period and those set forth in Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. 11.3.
(d) Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event Seller shall Seller have any liability (for indemnification or otherwisenot be liable pursuant to Section 11.2(a) under this Section 6.2 for any costsDamages that arise in whole or in part, lossesdirectly or indirectly from any Remediation or from any disclosure to any Person (including any Governmental Authority) regarding actual or potential environmental conditions at, liabilitieson, obligations, damages, lawsuits, claims, demands, and expenses, which under or migrating from the Properties unless the Damages arise from the work described in Schedule 11.2(d) or disclosures or work required by Environmental Law or a Governmental Authority.
(e) Notwithstanding anything to the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under contrary in this Agreement, provided however, that the Cap Amount Buyer shall not apply be required to breach indemnify Seller under this Agreement for any Damages to the extent they arise from any Releases of any Representations and Warranties set out in Hazardous Materials at the Designated SectionsProperties that occurred before Closing or other environmental conditions that already existed at the time of Closing.
Appears in 1 contract
Indemnifications. Seller shall indemnify, save (a) The Company will indemnify and hold harmless Buyerthe Underwriter against any losses, its Affiliatesclaims, directorsdamages or liabilities, officersjoint or several, shareholdersto which the Underwriter may become subject, employees under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact or necessary to make the statements therein not misleading, and agents (will reimburse the Underwriter for purposes of this Article VIany legal or other expenses reasonably incurred by the Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, all of which however, that the Company shall constitute “Buyer” and not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of entitlement or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by or behalf of the Underwriter or any Selling Stockholder expressly for indemnificationuse therein.
(b) Each Selling Stockholder, severally and not jointly, agrees to indemnify and hold harmless the Company and the Underwriter to the same extent as the foregoing indemnity from the Company to the Underwriter, but only with reference to written information furnished to the Company by or on behalf of such Selling Stockholder specifically for inclusion in the documents referred to in the foregoing indemnity; provided, however, that the Selling Stockholders will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission from any of the documents referred to in the foregoing indemnity in reliance upon and in conformity with written information furnished to the Company by the Underwriter specifically for use therein.
(c) The Underwriter will indemnify and hold harmless the Company and each Selling Stockholder against any losses, claims, damages or liabilities to which the Company or such Selling Stockholder may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Underwriter expressly for use therein; and will reimburse the Company and each Selling Stockholder for any legal or other expenses reasonably incurred by the Company or such Selling Stockholder in connection with investigating or defending any such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; provided that, the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party under subsection (a), (b) or (c) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (which counsel may at the option of the indemnifying party be counsel to the indemnifying party unless (1) the indemnified party has reasonably concluded (based upon advice of counsel to the indemnified party) that there may be herein referred legal defenses available to as it or other indemnified parties that are different from or in addition to those available to the indemnifying party or (2) a “Buyer Indemnified Party”conflict or potential conflict exists (based upon advice of counsel to the indemnified party) between the indemnified party and the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. If the indemnifying party does not assume the defense of such action, it is understood that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to one separate firm of local attorneys in each such jurisdiction when reasonably necessary but not to include two firms in the same jurisdiction) at any time for all such indemnified parties. The indemnifying party shall not be liable for any settlement of an action or claim for monetary damages effected without its consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying party shall indemnify each indemnified party from and against all costsany loss or liability by reason of such settlement or judgment. No indemnifying party shall, losseswithout the written consent of the indemnified party, liabilitieseffect the settlement or compromise of, obligationsor consent to the entry of any judgment with respect to, damages, lawsuits, claims, demands, and expenses any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of Third Party Claimssuch action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), including without limitation reasonable attorneys’ fees and all amounts reasonably paid (b) or (c) above in investigation, defense or settlement respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company, by the Underwriter and by the Selling Stockholders from the offering of the foregoing Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (hereind) above, “Damages”then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company, of the Underwriter and of the Selling Stockholders in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), actually incurred as well as any other relevant equitable considerations. The relative benefits received by the Company and/or by the Selling Stockholders on the one hand and the Underwriter on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriter. The relative fault shall be determined by reference to, among other things, whether the untrue or suffered alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by Buyer through the end Company, the Underwriter or the Selling Stockholders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Underwriter and the Selling Stockholders agree that it would not be just and equitable if contribution pursuant to this subsection (e) were determined by pro rata allocation or by any other method of allocation which does not take account of the Survival Period equitable considerations referred to above in this subsection (e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (e), the Underwriter shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and caused distributed to the public were offered to the public exceeds the amount of any damages which the Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(f) The obligations of the Company under this Section 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the Underwriter within the meaning of the Act; and the obligations of the Underwriter under this Section 8 shall be in addition to any liability which the Underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act. The obligations of each Selling Stockholder under this Section 8 shall be in addition to any liability which such Selling Stockholder may otherwise have.
(g) The liability of each Selling Stockholder under (i) any breach of any representation or warranty made by Seller such Selling Stockholder’s representations and warranties contained in this Agreement; Section 1 and (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate8, in which each case Buyer shall be entitled limited to indemnification for the entire an amount of Damages. Notwithstanding anything equal to the contrary contained in this Agreement or this Agreementnet proceeds received by such Selling Stockholder from the Shares sold by the Selling Stockholder to the Underwriter. The Company and each such Selling Stockholder may agree, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, as between themselves and expenses, which in without limiting the aggregate exceeds fifty percent (50%) rights of the purchase price paid by Buyer to Seller (the “Cap Amount”) Underwriter under this Agreement, provided however, as to the respective amounts of such liability for which they each shall be responsible. The Underwriter acknowledges and agrees that the Cap Amount shall not apply statements relating to breach of any Representations and Warranties set out each Selling Stockholder under the caption “Selling Stockholders” in the Designated SectionsProspectus constitute the only information furnished in writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Selling Stockholder Free Writing Prospectus or any amendments or supplements thereto.
Appears in 1 contract
Sources: Underwriting Agreement (TRW Automotive Holdings Corp)
Indemnifications. Seller shall indemnify(i) In addition to any other indemnity which any or all Borrowers may have to Agent or any Lender under any of the other Loan Documents and without limiting such other indemnification provisions, save each Borrower hereby agrees to indemnify and defend each of the Agent Indemnitees and Lender Indemnitees and to hold each of the Agent Indemnitees and Lender Indemnitees harmless Buyer, its Affiliates, directors, officers, shareholders, employees from and agents against any and all Claims which any of the Agent Indemnitees or any of the Lender Indemnitees may (for purposes of this Article VI, all of which shall constitute “Buyer” and except to the extent of entitlement for indemnification, may it results from their own gross negligence or willful misconduct) incur or be herein referred subject to as a “Buyer Indemnified Party”consequence, directly or indirectly, of (a) the issuance of, payment or failure to pay or any performance or failure to perform under any Letter of Credit or LC Support or (b) any suit, investigation or proceeding as to which Agent or any Lender is or may become a party to as a consequence, directly or indirectly, of the issuance of any Letter of Credit or any LC Support or the payment or failure to pay thereunder.
(ii) Each Participating Lender agrees to indemnify and defend each of the Fleet Indemnitees (to the extent the Fleet Indemnitees are not reimbursed by Borrowers or any other Obligor, but without limiting the indemnification obligations of Borrowers under this Agreement), on a Pro Rata basis, from and against any and all costsClaims which may be imposed on, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses (whether incurred by or not asserted against any of the Fleet Indemnitees in any way related to or arising out of Third Party ClaimsFleet's administration or enforcement of rights or remedies under any of the LC Documents or any of the transactions contemplated thereby (including costs and expenses which Borrowers are obligated to pay under Section 15.2 hereof), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement INCLUDING ALL CLAIMS ARISING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF THE FLEET INDEMNITEES provided that no Participating Lender shall be liable to any of the Fleet Indemnitees for any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification extent that they result solely from the willful misconduct or otherwise) under this Section 6.2 until the total gross negligence of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sectionssuch Fleet Indemnitees.
Appears in 1 contract
Sources: Loan and Security Agreement (Tropical Sportswear Co Inc)
Indemnifications. Seller shall (a) Nycomed hereby agrees to indemnify, save defend and hold harmless BuyerTMC, its Affiliatesall Affiliates of TMC and all officers, directors, officers, shareholders, employees and agents (for purposes of this Article VIthereof from all liabilities, all of which shall constitute “Buyer” and to the extent of entitlement for indemnificationclaims, may be herein referred to as a “Buyer Indemnified Party”) from and against all costsdamages, losses, liabilitiescosts, obligations, damages, lawsuits, claimsexpenses, demands, suits and expenses actions (whether or not arising out of Third Party Claims), including without limitation reasonable attorneys’ fees fees, expenses and all amounts reasonably paid in investigation, defense or settlement of any of the foregoing costs) (hereincollectively, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by ) arising out of: (i) any Nycomed’s breach of any representation of its obligations under this Agreement or warranty made by Seller in this the Pharmacovigilance QP Agreement; or (ii) any Nycomed’s making representations or warranties which are not authorized by TMC hereunder.
(b) TMC hereby agrees to indemnify, defend and hold harmless Nycomed, Affiliates of Nycomed and all officers, directors, employees and agents thereof from all Damages arising out of TMC’s breach of any covenant or agreement made by Seller in of its obligations under this Agreement which requires performance after Closing; or the Pharmacovigilance QP Agreement.
(iiic) In the operations event a claim is based partially on an indemnified claim described in Sections 11.3(a) and/or 11.3(b) above and partially on a non-indemnified claim, or is based partially on a claim described in Section 11.3(a) above and partially on a claim described in Section 11.3(b) above, any payments and reasonable attorney fees incurred in connection with such claims are to be apportioned between the Parties in accordance with the degree of the Company prior cause attributable to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability each Party.
(for indemnification or otherwised) The indemnified Party under this Section 6.2 until 11.3 hereby agrees that (i) it will give written notice to the total indemnifying Party of all Damages actually incurred or suffered by Buyer each claim for which it seeks indemnification hereunder exceeds $5,000 and that the indemnifying Party shall have sole control and authority with respect to the defense and settlement of any such claim; and (ii) the indemnified Party shall cooperate fully with the indemnifying Party, at the indemnifying Party’s sole cost and expense, in the aggregate, in defense of any such claim. The indemnifying Party shall not accept any settlement which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in imposes liability not covered by this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expensesrestrictions on the indemnified Party without the indemnified Party’s prior written consent, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount consent shall not apply to breach of any Representations and Warranties set out in the Designated Sectionsbe unreasonably withheld or delayed.
Appears in 1 contract
Indemnifications. Seller shall (a) Nycomed hereby agrees to indemnify, save defend and hold harmless BuyerTMC, its Affiliatesall Affiliates of TMC and all officers, directors, officers, shareholders, employees and agents (for purposes of this Article VIthereof from all liabilities, all of which shall constitute “Buyer” and to the extent of entitlement for indemnificationclaims, may be herein referred to as a “Buyer Indemnified Party”) from and against all costsdamages, losses, liabilitiescosts, obligations, damages, lawsuits, claimsexpenses, demands, suits and expenses actions (whether or not arising out of Third Party Claims), including without limitation reasonable attorneys’ fees ' fees, expenses and all amounts reasonably paid in investigationsettlement costs) (collectively, defense or settlement "Damages") arising out of: (i) Nycomed's breach of any of the foregoing its obligations under this Agreement; or (hereinii) Nycomed's making representations or warranties which are not authorized by TMC hereunder.
(b) TMC hereby agrees to indemnify, “Damages”)defend and hold harmless Nycomed, actually incurred or suffered by Buyer through the end Affiliates of the Survival Period Nycomed and caused by all officers, directors, employees and agents thereof from all Damages arising out of: (i) any TMC's breach of any representation or warranty made by Seller in of its obligations under this Agreement; (ii) the Product infringing on the intellectual property rights of third parties or misappropriating any breach trade secrets of any covenant or agreement made by Seller in this Agreement which requires performance after Closingthird parties; or (iii) the operations of the Company prior to Closing. Notwithstanding anything personal injuries or damages suffered by third parties due to the contrary hereinProduct not conforming to the warranty set forth in Section 18.1 above.
(c) In the event a claim is based partially on an indemnified claim described in Sections 18.3(a) and/or 18.3(b) above and partially on a non-indemnified claim, Seller will have no liability or is based partially on a claim described in Section 18.3(a) above and partially on a claim described in Section 18.3(b) above, any payments and reasonable attorney fees incurred in connection with such claims are to be apportioned between the Parties in accordance with the degree of cause attributable to each Party.
(for indemnification or otherwised) The indemnified Party under this Section 6.2 until 18.3 hereby agrees that (i) it will give written notice to the total indemnifying Party of all Damages actually incurred or suffered by Buyer each claim for which it seeks indemnification hereunder exceeds $5,000 and that the indemnifying Party shall have sole control and authority with respect to the defense and settlement of any such claim; and (ii) the indemnified Party shall cooperate fully with the indemnifying Party, at the indemnifying Party's sole cost and expense, in the aggregatedefense of any such claim. The indemnifying Party shall not accept any settlement which imposes liability not covered by this indemnification or restrictions on the indemnified Party without the indemnified Party's prior written consent, which consent shall not be unreasonably withheld or delayed..
(e) In the event that the Product is held in a suit or proceeding to infringe any intellectual property rights or misappropriate any trade secrets of a third party and the use of such Product is enjoined, or TMC reasonably believes that it is likely to be found to infringe or constitute a misappropriation or likely to be enjoined, then TMC shall, at its sole cost and expense, either (i) procure for Nycomed the right to continue distributing the Product; or (ii) modify the Product so that it becomes non-infringing. If TMC determines, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in its reasonable discretion, that neither (i) nor (ii) are commercially practicable, then TMC may terminate this Agreement or this Agreementupon giving Nycomed ninety (90) days prior written notice; provided, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that before resuming the Cap Amount marketing and distribution of the Product in the Territory, (A) Nycomed shall have a ninety (90) days right of first refusal with respect to such rights, without the payment of any up-front or additional milestone payments; and (B) if Nycomed does not exercise such right of first refusal, then TMC shall not apply offer terms more favorable to breach a third party without first offering those more favorable terms to Nycomed in accordance with (A) above.
(f) TMC shall have no obligation for any claim of infringement or misappropriation arising from: (i) any Representations combination by Nycomed of the Product with products not supplied or approved in writing by TMC, where such infringement would not have occurred but for such combination; (ii) the adaptation or modification of the Product not performed by TMC, where such infringement would not have occurred but for such adaptation or modification; (iii) the use of the Product for an Indication for which it was not approved, where such infringement would not have occurred but for such use; or (iv) a claim based on intellectual property rights owned by Nycomed or any of its Affiliates.
(g) This Section 18.3 states Nycomed's sole remedy and Warranties set out TMC's exclusive liability in the Designated Sectionsevent that a Product infringes on the intellectual property rights of, or misappropriates the trade secrets of, any third party.
Appears in 1 contract
Sources: Sales, Marketing and Distribution Agreement (Medicines Co/ Ma)
Indemnifications. Seller shall indemnify, save (a) The Company agrees to indemnify and hold harmless Buyereach of you and each person who controls any of you within the meaning of Section 15 of the Act against any and all losses, its Affiliatesclaims, directorsdamages or liabilities, officersjoint or several, shareholdersto which you and they or any of you or them may become subject under the Act, employees the Exchange Act or any other statute or common law, and agents to reimburse each of you and each such controlling person for any legal or other expenses (for purposes of this Article VIincluding, all of which shall constitute “Buyer” and to the extent of entitlement for indemnificationhereinafter provided, may be herein referred to reasonable counsel fees) incurred by you or them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as a “Buyer Indemnified Party”) from and against all costssuch losses, lossesclaims, damages, liabilities, obligationsexpenses or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any preliminary prospectus or the Prospectus as amended or supplemented (if any amendments or supplements thereto shall have been furnished) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the indemnity agreement contained in this subsection (a) shall not apply to any such losses, claims, damages, lawsuitsliabilities, expenses or actions arising out of, or based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance upon written information furnished to the Company by or on behalf of any of you specifically for use in connection with the preparation of the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of them; and provided, further, that the indemnity agreement contained in this paragraph shall not inure to the benefit of any of you (or of any of your controlling persons) on account of any losses, claims, demandsdamages, and liabilities, expenses (whether or not actions arising out of Third Party Claims), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement from the sale of any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by Securities to any person (i) if a copy of the Prospectus, as amended or supplemented (if any breach amendments or supplements thereto shall have been furnished), excluding any document incorporated by reference therein, shall not have been sent or given to such person with or prior to the written confirmation of any representation the sale involved, unless such failure is the result of non-compliance by the Company with Section 5(a) hereof or warranty made by Seller in this Agreement; (ii) as to any breach preliminary prospectus, if a copy of the Prospectus, as the same may be amended or supplemented (if any covenant amendments or supplements thereto shall have been furnished), excluding any document incorporated by reference therein, shall not have been sent or given to such person within the time required by the Securities Act, and the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such preliminary prospectus was corrected in the Prospectus, unless such failure to send or give such copy of the Prospectus is the result of non-compliance by the Company with Section 5(a) hereof. The indemnity agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement Section 8(a) and the representations and warranties of the Company contained in Section 1 hereof shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any of you or any such controlling person, and shall survive the delivery of the Securities. The indemnity agreement of the Company contained in this Agreement, Section 8(a) shall be in no event shall Seller have addition to any liability which the Company may otherwise have to an indemnified party hereunder.
(for indemnification b) Each of you, severally, agrees to indemnify and hold harmless the Company, its directors, each of its officers who shall have signed the Registration Statement and each person who controls the Company within the meaning of Section 15 of the Act against any and all losses, claims, damages or otherwise) liabilities, joint or several, to which they or any of them may become subject under this Section 6.2 the Act, the Exchange Act or any other statute or common law, and to reimburse each of them for any costslegal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any action, insofar as such losses, claims, damages, liabilities, obligationsexpenses or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or Prospectus as amended or supplemented (if any amendments or supplements thereto shall have been furnished) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, damagesif such statement or omission was made in reliance upon written information furnished to the Company by or on behalf of any of you specifically for use in connection with the preparation of the Registration Statement, lawsuitsthe Prospectus or any amendment or supplement to either thereof. Your respective indemnity agreements contained in this Section 8(b) and the representations and warranties of each of you which shall have signed this Agreement contained in Section 12 hereof shall remain operative and in full force and effect, claimsregardless of any investigation made by or on behalf of the Company or any such director, demandsofficer or controlling person, and expenses, which in shall survive the aggregate exceeds fifty percent (50%) delivery of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sections.the
Appears in 1 contract
Indemnifications. Seller a. The PRN Companies jointly and severally agree to indemnify the Quin▇▇▇ ▇▇▇panies against any claims made by PRN 800 Number Telco Club Members, VRS or any other Service Bureau providing services to the PRN 800 Number Telco Clubs, any governmental or regulatory body, or any other party, arising out of the operation of the PRN 800 Number Telco Clubs and shall indemnifyhold the Quin▇▇▇ ▇▇▇panies harmless from any liability, save cost or expense arising in connection therewith.
b. The Quin▇▇▇ ▇▇▇panies jointly and severally agree to indemnify the PRN Companies against any claims made by Quin▇▇▇ ▇▇▇b Members, any Service Bureau providing services to the Quin▇▇▇ ▇▇▇bs, any governmental or regulatory body, or any other party, arising out of the operation of the Quin▇▇▇ ▇▇▇bs advertised as part of the PRN 800 Number Telco Clubs in accordance with this Agreement, and shall hold the PRN Companies harmless Buyerfrom any liability, cost or expense arising in connection therewith.
c. Promptly after receipt by any party hereto (the "Indemnitee") of notice of any demand, claim or circumstances which, with the lapse of time, would or might give rise to a claim or the commencement (or threatened commencement) of any action, proceeding or investigation (an "Asserted Liability") that may result in any claim for which a party is entitled to indemnification under this Agreement (a "Claim"), the party entitled to indemnification (the "Indemnitee") shall promptly give notice thereof (the "Claims Notice") to the party obligated to provide indemnification pursuant to this Agreement (the "Indemnifying Party"); provided, however, that the failure of any Indemnitee to give notice as provided herein shall not relieve the Indemnifying Party of its Affiliates, directors, officers, shareholders, employees and agents obligations under paragraph (for purposes a) or (b) of this Article VISection, all of which shall constitute “Buyer” and except to the extent of entitlement for indemnification, may be herein referred that the Indemnifying Party is actually prejudiced by such failure to as a “Buyer Indemnified Party”) from and against all costs, losses, liabilities, obligations, damages, lawsuits, claims, demandsgive notice. The Claims Notice shall describe the Asserted Liability in reasonable detail, and expenses shall indicate the amount (whether estimated,
d. The Indemnifying Party may elect to compromise or not arising out of Third defend, at its own expense and by its own counsel, any Asserted Liability. If the Indemnifying Party Claims)elects to compromise or defend such Asserted Liability, including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigationit shall within thirty (30) days (or sooner, defense or settlement of any if the nature of the foregoing (hereinAsserted Liability so requires) notify the Indemnitee of its intent to do so, “Damages”)and the Indemnitee shall cooperate, actually incurred or suffered by Buyer through at the end expense of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary hereinIndemnifying Party, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregatecompromise of, in which case Buyer shall be entitled or defense against, such Asserted Liability.
i. If the Indemnifying Party elects not to indemnification for compromise or defend the entire amount Asserted Liability, fails to notify the Indemnitee of Damages. Notwithstanding anything its election as herein provided or contests its obligation to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) indemnify under this Agreement, provided howeverthe Indemnitee may pay, that compromise or defend such Asserted Liability at the Cap Amount expense of the Indemnifying Party (if the Indemnifying Party is found obligated to indemnify the Indemnitee with respect to the Claim).
ii. Subject to the limitations contained in Paragraph 3(e)( on the obligations of the Indemnifying Party in respect of proposed settlements, the Indemnitee shall have the right to employ its own counsel with respect to any Asserted Liability, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (1) the employment of such counsel shall have been authorized in writing by the Indemnifying Party in connection with the defense of such action, or (2) such Indemnifying Party shall not apply have, as provided above, promptly employed counsel reasonably satisfactory to breach the Indemnitee to take charge of the defense of such action, or (3) the Indemnitee shall have reasonably concluded based on an opinion of counsel that there may be one or more legal defenses available to it which are different from or additional to those available to such Indemnifying Party, in any Representations of which events such reasonable fees and Warranties set out expenses shall be borne by the Indemnifying Party and the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the Indemnitee in respect of such different or additional defenses.
iii. If the Indemnifying Party chooses to defend any claim, the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its control that are necessary or appropriate for such defense. If the Indemnifying Party elects not to assume the defense of a Claim, it will not be obligated to pay the fees and expenses of more than one counsel for all Indemnitees with respect to such claim, unless in the Designated Sectionsreasonable judgment of an Indemnitee, and in the opinion of such Indemnitee's counsel, a conflict of interest may exist between such Indemnitee and any other of such Indemnitees with respect to such claim, in which event the Indemnifying Party shall be obligated to pay the fees and expenses of such additional counsel or counsels.
e. Notwithstanding the provisions of paragraph 3(c) neither the Indemnifying Party nor the Indemnitee may settle or compromise any claim for which indemnification
Appears in 1 contract
Indemnifications. Seller shall indemnify12.1 The Transferor hereby agree to defend, save indemnify and hold Transferee harmless Buyerfrom and against, its Affiliates, directors, officers, shareholders, employees and agents (for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent of entitlement for indemnificationreimburse Transferee with respect to, may be herein referred to as a “Buyer Indemnified Party”) from any and against all costslosses, lossesdamages, liabilities, obligations, damages, lawsuits, claims, demandsjudgments, settlements, fines, costs and expenses (whether or not arising out including reasonable legal fees and reasonable expenses of Third Party Claimsinvestigation) (the “Indemnifiable Amounts”), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement of every nature whatsoever incurred by Transferee (which will be deemed to include any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and Company) caused by or arising out of or in connection with (i) any breach inaccuracy in or breach, by the Company or the Transferor, of any representation or warranty made by Seller of the Company or the Transferor contained in this Agreement; (ii) the failure, partial or total, of the Company or any of the Transferor to perform any agreement or covenant required by this Agreement; (iii)the failure to deliver, or procure the delivery of any document, obligation, or activity which shall be delivered at the Completion as set forth in Clause 5.1(a), and (iv) any federal or state Tax liability, or asserted liability, of the Company attributable to periods (or any portion thereof) beginning on the date the Transferor became the shareholder of the Company and ending on or prior to the Completion provided that such liabilities were not accrued for on the balance sheet.
12.2 The Transferee hereby agree to defend, indemnify and hold Transferor harmless from and against, and to reimburse Transferor with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs and expenses (including reasonable legal fees and reasonable expenses of investigation) (the “Indemnifiable Amounts”), of every nature whatsoever incurred by Transferor (which will be deemed to include any of the foregoing incurred by the Company) caused by or arising out of or in connection with (i) the failure to deliver, or procure the delivery of any document, obligation, or activity which shall be delivered at the Completion as set forth in Clause 5.1(b), and (ii) any inaccuracy in or breach of any covenant representation or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations warranty of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary Transferee contained in this Agreement Agreement.
12.3 The Transferor or this Agreementthe Transferee, in no event as the case may be, shall Seller have any liability without undue delay reach an agreement with the Transferee or the Transferor regarding the Indemnifiable Amounts and the specific plan of indemnification (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap AmountIndemnification Plan”) under this Agreement, provided however, that within 10 Business Days upon receiving such written notification. The Indemnifiable Amounts shall be paid in accordance with the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated SectionsIndemnification Plan within 30 Business Days.
Appears in 1 contract
Sources: Share Sale and Transfer Agreement (Lotus Technology Inc.)
Indemnifications. Seller shall indemnify, save (a) The Company agrees to indemnify and hold harmless Buyereach of you and each person who controls any of you within the meaning of Section 15 of the Act against any and all losses, its Affiliatesclaims, directorsdamages or liabilities, officersjoint or several, shareholdersto which you and they or any of you or them may become subject under the Act, employees the Exchange Act or any other statute or common law, and agents to reimburse each of you and each such controlling person for any legal or other expenses (for purposes of this Article VIinclud- ing, all of which shall constitute “Buyer” and to the extent of entitlement for indemnificationhereinafter provided, may be herein referred to reasonable counsel fees) incurred by you or them in connection with investigating any such losses, claims, damages or liabili- ties or in connection with defending any actions, insofar as a “Buyer Indemnified Party”) from and against all costssuch losses, lossesclaims, damages, liabilities, obligationsexpenses or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or Prospectus as amended or supplemented (if any amendments or supplements thereto shall have been furnished) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the indemnity agreement contained in this subsection (a) shall not apply to any such losses, claims, damages, lawsuitsliabilities, expenses or actions arising out of, or based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance upon written information furnished to the Company by or on behalf of any of you specifically for use in connection with the preparation of the Registration Statement, the Prospectus or any amendment or supplement to either thereof; and provided, further, that the indemnity agreement contained in this paragraph shall not inure to the benefit of any of you (or of any of your controlling persons) on account of any losses, claims, demandsdamages, and liabilities, expenses (whether or not actions arising out of Third Party Claims), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement from the sale of any of the foregoing Securities to any person if a copy of the Prospectus, as amended or supplemented (herein, “Damages”if any amendments or supplements thereto shall have been furnished), actually incurred excluding any document incorporated by reference therein, shall not have been sent or suffered by Buyer through given to such person with or prior to the end written confirmation of the Survival Period and caused sale involved, unless such failure is the result of non- compliance by (ithe Company with Section 5(a) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or hereof. The indemnity agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior contained in this Section 8(a) and the representations and warranties of the Company contained in Section 1 hereof shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any of you or any such controlling per- son, and shall survive the delivery of the Securities. The indemnity agreement of the Company contained in this Section 8(a) shall be in addition to Closing. Notwithstanding anything any liability which the Company may otherwise have to an indemnified party hereunder.
(b) Each of you, severally, agrees to indemnify and hold harmless the Company, its directors, each of its officers who shall have signed the Registration Statement and each person who controls the Company within the meaning of Section 15 of the Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or any other statute or common law, and to reimburse each of them for any legal or other expenses (including, to the contrary extent hereinafter provided, reasonable counsel fees) incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any action, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon any untrue statement or alleged untrue state- ment of a material fact contained in the Registration State- ment or Prospectus as amended or supplemented (if any amendments or supplements thereto shall have been furnished) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon written information furnished to the Company by or on behalf of any of you specifically for use in connection with the prepa- ration of the Registration Statement, the Prospectus or any amendment or supplement to either thereof. Your respective indemnity agreements contained in this Section 8(b) and the representations and warranties of each of you which shall have signed this Agreement contained in Section 12 hereof shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Company or any such director, officer or controlling person, and shall survive the delivery of the Securities. The indemnity agreement of each of you contained in this Section 8(b) shall be in addition to any liability which you may otherwise have to an indemnified party hereunder.
(c) Each of the Company and you, severally, agrees that, upon the receipt of notice of the commencement of any action against it, any of its directors or officers, or any person controlling it as aforesaid, in respect of which indemnity may be sought on account of any indemnity agreement contained herein, Seller it will promptly give a notice of the commencement thereof to the party or parties against whom indemnity shall be sought hereunder, but the omission so to notify such indemnifying party or parties of any such action shall not relieve such indemnifying party or parties from any liability which it or they may have no liability (for indemnification or otherwise) under this Section 6.2 until to the total indemnified party otherwise than on account of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregatesuch indemnity agreement. In case such notice of any such action shall be so given, in which case Buyer such indemnifying party shall be entitled to indemnification participate at its own expense in the defense or, if it so elects, to assume (in conjunction with any other indemnifying parties) the defense of such action, in which event such defense shall be conducted by counsel chosen by such indemnifying party or parties. If the indemnifying party shall elect to assume the defense of such action, any indemnified party or parties who shall be defendant or de- fendants in such action shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel retained by it or them shall be at the expense of such indemnified party or parties unless (i) the employment of such counsel has been specifically authorized in writing by the indemnifying party or parties or (ii) counsel chosen by the indemnifying party or parties as aforesaid shall not be satisfactory to the indemnified party or parties or shall for any reason be unable to act for or continue to act for such indemnified party or parties; provided, however, that in any case or cases to which the foregoing clause (ii) shall apply, the indemnifying party or parties shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the entire amount reasonable fees and expenses of Damages. Notwithstanding anything more than one separate firm of attorneys for all such indemnified parties, which firm shall be chosen by the indemnified party or parties and satisfactory to the contrary contained indemnifying party or parties. If the indemnifying party shall elect not to assume the defense of such action, such indemnifying party will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them.
(d) In order to provide for just and equitable contribution in this Agreement circumstances in which the indemnification provided for in Sections 8(a) or this Agreement, (b) hereof shall be due in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 accordance with its terms but for any costs, reason shall be unavailable or insufficient to hold any indemnified party thereunder harmless in respect of any losses, liabilities, obligations, damages, lawsuits, claims, demandsdamages or liabilities referred to therein, the Company and each of you severally shall contribute to the aggregate losses, claims, damages and liabilities to which the Company and one or more of you may be subject, as a result of such losses, claims, damages or liabilities, in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and each of you on the other in con- nection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other equitable considerations, including, with respect only to any losses, claims, damages or liabilities referred to in Section 8(a) hereof, relative benefit. Relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or you, on the other, and expensesthe parties' relative intent, which knowledge and access to information and opportunity to correct or prevent such statement or omission. The relative benefits received by the Company on the one hand and you on the other shall be deemed to be in the aggregate exceeds fifty percent same pro- portion as the total net proceeds from the offering of the Securities (50%before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by you with respect to the offering of the Securities. Notwithstanding the foregoing, no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the purchase price Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Company and you agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined (i) by any method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d), or (ii) with respect only to any losses, claims, damages or liabilities referred to in Section 8(a) hereof, by pro rata allocation (even if you were treated as one entity for such purpose). The amount paid or payable by Buyer a party entitled to Seller (contribution as a result of the “Cap Amount”losses, claims, damages or liabilities referred to above in this Section 8(d) under shall be deemed to include any legal or other expenses reasonably incurred by such party in connection with investigating or defending any such action or claim. For purposes of this AgreementSection 8(d), provided howevereach person, that if any, who controls any of you within the Cap Amount meaning of Section 15 of the Act shall not apply have the same rights to breach contribution as you, and each director and officer of any Representations the Company who shall have signed the Registration Statement and Warranties set out each person, if any, who controls the Company within the meaning of Section 15 of the Act shall have the same rights to contribution as the Company, subject, in each case, to the Designated Sectionsfourth sentence of this Section 8(d).
Appears in 1 contract
Indemnifications. Seller shall indemnify, save and hold harmless Buyer, its Affiliates, directors, officers, shareholders, employees and agents (15.1. The Partner agrees that AXIORY will not be held liable for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent of entitlement for indemnification, may be herein referred to as a “Buyer Indemnified Party”) from and against all any costs, lossesdamages or losses caused by force majeure events, liabilitiesincluding but not limited to, obligationsgovernment restrictions, damagesexchange or market rulings, lawsuitssuspension or delay of trading, war, civil disturbances, earthquakes, strikes, equipment failure, communication line failure, system failure, unauthorised access, theft or any problem, technical or otherwise, which may prevent the Client from entering or modifying an order or prevent AXIORY from acting on an online instruction, or other events or conditions beyond AXIORY’s control, as determined and at the sole discretion of AXIORY.
15.2. The Partner agrees that AXIORY will not be held liable for any and all manner of claims, demands, proceedings, suits or actions, liabilities, losses, expenses and expenses costs (whether including accountant and attorney fees) (collectively “Loss”) relating to or not arising out of:
(a) The Partner’s failure to perform its obligations under any agreement with AXIORY;
(b) Any dishonest, fraudulent, negligent or criminal act or omission on the part of the Partner, or any person acting on its behalf, with respect to the Clients and/or other Partners;
(c) The Partner’s breach of any warranty made by it under any agreement with AXIORY; or
(d) The institution of any investigation, claim, suit, action, or other proceeding against AXIORY relating to or arising out of Third Party Claims)this Agreement by a Client and/or Sub-Partner and/or Parent Partner, including without limitation reasonable attorneys’ fees any governmental, regulatory or self-regulatory authority or organisation.
15.3. Upon notice from AXIORY, the Partner will promptly pay to AXIORY any amount owed to AXIORY under this clause. The Partner further agrees that, if any person (natural or legal) has instituted a claim, suit, action, arbitration or other proceeding, or threatened to do so, against AXIORY which reasonably could expose AXIORY to Loss or damage to its reputation and all amounts reasonably paid in investigation, defense or settlement of any that is related to an obligation of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) Partner under this Agreement, provided however, that AXIORY may withhold any amount equal to the Cap Amount shall not apply to breach amount of any Representations such claim from sums owed to the Partner by the Company, or from any other funds, securities or other property owned by the Partner and Warranties set out on deposit with AXIORY for any purpose (including, without limitation, funds, securities or other property held in any account of the Designated SectionsPartner), until such claim, suit, action, arbitration or other proceeding has been fully resolved to the satisfaction of AXIORY.
Appears in 1 contract
Sources: Partner Agreement
Indemnifications. Seller shall indemnify(i) In addition to any other indemnity which Borrowers may have to Agent or any Lender under any of the other Loan Documents and without limiting such other indemnification provisions, save each Borrower hereby agrees to indemnify and defend each of the Agent Indemnitees and Lender Indemnitees and to hold each of the Agent Indemnitees and Lender Indemnitees harmless Buyerfrom and against any and all Indemnified Claims which any of the Agent Indemnitees or any of the Lender Indemnitees may (other than as the actual result of their own gross negligence or willful misconduct) incur or be subject to as a consequence, its Affiliatesdirectly or indirectly, directorsof (a) the issuance of, officerspayment or failure to pay or any performance or failure to perform under any Letter of Credit or LC Support or (b) any suit, shareholdersinvestigation or proceeding as to which Agent or any Lender is or may become a party to as a consequence, employees directly or indirectly, of the issuance of any Letter of Credit or any LC Support or the payment or failure to pay thereunder.
(ii) Each Participating Lender agrees to indemnify and agents defend each of the Fleet Indemnitees (for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent the Fleet Indemnitees are not reimbursed by Borrowers or any other Obligor, but without limiting the indemnification obligations of entitlement for indemnificationBorrowers under this Agreement), may be herein referred to as on a “Buyer Indemnified Party”) Pro Rata basis, from and against any and all costsIndemnified Claims which may be imposed on, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses (whether incurred by or not asserted against any of the Fleet Indemnitees in any way related to or arising out of Third Party ClaimsFleet's administration or enforcement of rights or remedies under any of the LC Documents or any of the transactions contemplated thereby (including costs and expenses which Borrowers are obligated to pay under Section 14.2 hereof), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement provided that no Participating Lender shall be liable to any of the Fleet Indemnitees for any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification extent that they result solely from the willful misconduct or otherwise) under this Section 6.2 until the total gross negligence of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sectionssuch Fleet Indemnitees.
Appears in 1 contract
Sources: Loan and Security Agreement (Tropical Sportswear International Corp)
Indemnifications. Seller shall indemnify, save You agree to indemnify and hold harmless Buyereach Commitment and Credit Party and each of their affiliates, its AffiliatesRelated Funds and their respective officers, directors, officersemployees, shareholdersagents, employees accountants, attorneys, advisors and agents other representatives (for purposes of this Article VIeach, all of which shall constitute “Buyer” and to the extent of entitlement for indemnification, may be herein referred to as a “Buyer Representative”) and any Representative of such Representatives (each, an “Indemnified Party”) from and against (and will reimburse each Indemnified Party as the same are incurred for) any and all costs, losses, liabilities, obligationsclaims, damages, lawsuits, claims, demands, liabilities and expenses (such expenses, in the case of counsel, to include the reasonable and documented fees, disbursements and other charges of ▇▇▇▇▇ ▇▇▇▇ as counsel to the New Tranche B-2 Creditors, Dentons as counsel to the Fronting Lender and one special or local counsel for each relevant jurisdiction or specialty for the New Tranche B-2 Creditors taken as a whole, and in the case of an actual or perceived conflict of interest, one additional New York counsel and local and special counsel for each group of similarly situated Indemnified Parties) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) this Commitment and Participation Letter and the other transactions contemplated hereby, IN ALL CASES, WHETHER OR NOT CAUSED OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNIFIED PARTY except to the extent such claim, damage, loss, liability or expense is found in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from (i) such Indemnified Party’s bad faith, gross negligence or willful misconduct or (ii) such Indemnified Party’s material breach of its obligations under this Commitment and Participation Letter. In the case of an investigation, litigation or proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not arising out of Third Party Claims), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in such investigation, defense litigation or settlement of proceeding is brought by you, your equityholders or creditors or an Indemnified Party or any of other person, whether or not an Indemnified Party is otherwise a party thereto and whether or not the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closingtransactions contemplated hereby are consummated. Notwithstanding anything to the contrary herein, Seller will have You also agree that no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer Indemnified Party shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification whether direct or indirect, in contract or tort or otherwise) to you or your subsidiaries or affiliates or to your or their respective equity holders or creditors arising out of, related to or in connection with any aspect of the transactions contemplated hereby, except to the extent of direct, as opposed to (w) special, (x) indirect, (y) consequential or (z) punitive, damages determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s bad faith, gross negligence or willful misconduct. Notwithstanding any other provision of this Commitment and Participation Letter, no Indemnified Party shall be liable for any damages arising from the use by others of information or other materials obtained through electronic telecommunications or other information transmission systems, other than for direct or actual damages resulting from the bad faith, gross negligence or willful misconduct of such Indemnified Party as determined by a final and nonappealable judgment of a court of competent jurisdiction. All amounts paid by you, your subsidiaries or your affiliates to an Indemnified Party under this Section 6.2 5 shall, to the extent permitted by applicable law, be treated for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, all tax purposes as adjustments to the consideration paid for the Transactions pursuant to this Commitment and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated SectionsParticipation Letter.
Appears in 1 contract
Indemnifications. Seller shall (a) Nycomed hereby agrees to indemnify, save defend and hold harmless BuyerTMC, its Affiliatesall Affiliates of TMC and all officers, directors, officers, shareholders, employees and agents (for purposes of this Article VIthereof from all liabilities, all of which shall constitute “Buyer” and to the extent of entitlement for indemnificationclaims, may be herein referred to as a “Buyer Indemnified Party”) from and against all costsdamages, losses, liabilitiescosts, obligations, damages, lawsuits, claimsexpenses, demands, suits and expenses actions (whether or not arising out of Third Party Claims), including without limitation reasonable attorneys’ fees fees, expenses and all amounts reasonably paid in investigation, defense or settlement of any of the foregoing costs) (hereincollectively, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by ) arising out of: (i) any Nycomed’s breach of any representation of its obligations under this Agreement, the QA Agreements or warranty made the Pharmacovigilance Agreement; or (ii) Nycomed’s making representations or warranties which are not authorized by Seller in TMC hereunder.
(b) TMC hereby agrees to indemnify, defend and hold harmless Nycomed, Affiliates of Nycomed and all officers, directors, employees and agents thereof from all Damages arising out of: (i) TMC’s breach of any of its obligations under this Agreement, the QA Agreements or the Pharmacovigilance Agreement; (ii) the Product infringing on the intellectual property rights of third parties or misappropriating any breach trade secrets of any covenant or agreement made by Seller in this Agreement which requires performance after Closingthird parties; or (iii) the operations of the Company prior to Closing. Notwithstanding anything personal injuries or damages suffered by third parties due to the contrary hereinProduct not conforming to the warranty set forth in Section 18.1 above.
(c) In the event a claim is based partially on an indemnified claim described in Sections 18.3(a) and/or 18.3(b) above and partially on a non-indemnified claim, Seller will have no liability or is based partially on a claim described in Section 18.3(a) above and partially on a claim described in Section 18.3(b) above, any payments and reasonable attorney fees incurred in connection with such claims are to be apportioned between the Parties in accordance with the degree of cause attributable to each Party.
(for indemnification or otherwised) The indemnified Party under this Section 6.2 until 18.3 hereby agrees that (i) it will give written notice to the total indemnifying Party of all Damages actually incurred or suffered by Buyer each claim for which it seeks indemnification hereunder exceeds $5,000 and that the indemnifying Party shall have sole control and authority with respect to the defense and settlement of any such claim; and (ii) the indemnified Party shall cooperate fully with the indemnifying Party, at the indemnifying Party’s sole cost and expense, in the aggregatedefense of any such claim. The indemnifying Party shall not accept any settlement which imposes liability not covered by this indemnification or restrictions on the indemnified Party without the indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed.
(e) In the event that the Product is held in a suit or proceeding to infringe any intellectual property rights or misappropriate any trade secrets of a third party and the use of such Product is enjoined, or TMC reasonably believes that it is likely to be found to infringe or constitute a misappropriation or likely to be enjoined, then TMC shall, at its sole cost and expense, either (i) procure for Nycomed the right to continue distributing the Product; or (ii) modify the Product so that it becomes non-infringing. If TMC determines, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in its reasonable discretion, that neither (i) nor (ii) are commercially practicable, then TMC may terminate this Agreement or this Agreement, in upon giving Nycomed ninety (90) days prior written notice.
(f) TMC shall have no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 obligation for any costsclaim of infringement or misappropriation arising from: (i) any combination by Nycomed of the Product with products not supplied or approved in writing by TMC, losseswhere such infringement would not have occurred but for such combination; (ii) the adaptation or modification of the Product not performed by TMC, liabilitieswhere such infringement would not have occurred but for such adaptation or modification; (iii) the use of the Product for an Indication for which it was not approved, obligations, damages, lawsuits, claims, demands, where such infringement would not have occurred but for such use; or (iv) a claim based on intellectual property rights owned by Nycomed or any of its Affiliates.
(g) This Section 18.3 states Nycomed’s sole remedy and expenses, which TMC’s exclusive liability in the aggregate exceeds fifty percent (50%) of event that a Product infringes on the purchase price paid by Buyer to Seller (intellectual property rights of, or misappropriates the “Cap Amount”) under this Agreementtrade secrets of, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sectionsthird party.
Appears in 1 contract
Indemnifications. Seller shall indemnify(a) Each Lender shall, save ratably in accordance with the aggregate amount of its Commitments and hold harmless Buyeroutstanding principal amount of Loans (without duplication), its Affiliatesindemnify each Agent, and each of their respective affiliates, directors, officers, shareholders, agents and employees and agents (for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent not reimbursed by any Borrower or Guarantor) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from such indemnitee's gross negligence or willful misconduct) that such indemnitee may suffer or incur in connection with this Agreement or any action taken or omitted by such indemnitee hereunder; it being understood that that no Lender shall have any obligation under this Section 7.06(a) to indemnify any Tender Offer Guarantor for any matter covered by Section 7.06(b).
(b) Each Lender shall, ratably in accordance with the aggregate amount of entitlement its Commitment, indemnify promptly on demand each Tender Offer Guarantor for indemnificationany amount due and payable by Alcan to such Tender Offer Guarantor pursuant to the Mandate Letter Indemnity and not so paid by Alcan, may provided that its obligations under this Section 7.06(b) shall not exceed the aggregate amount of its Commitment (net, on any date, of the aggregate outstanding amount of its Loans on any such date). Notwithstanding any other provisions of this Agreement, the obligations of the Lenders under this Section are unconditional and irrevocable.
(c) If any Lender is not permitted (by its constitutional documents or any applicable law) to comply with Section 7.06(b), then such Lender shall not be herein referred required to as comply with Section 7.06(b) and shall instead be deemed to have taken, on the date the Tender Offer Guarantee is issued (or, if later, on the date on which such Lender becomes a “Buyer Indemnified Party”) from party to this Agreement), an undivided interest and against all costs, losses, liabilities, obligations, damages, lawsuits, claims, demandsparticipation in the Tender Offer Guarantee (in accordance with, and expenses only to the extent of, its Commitment (whether or not arising out of Third Party Claims)net, including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigationon any date, defense or settlement of any of the foregoing aggregate outstanding amount of its Loans on any such date)). On receipt of a demand from the Lead Tender Offer Guarantor, such Lender shall promptly pay to the Tender Offer Guarantors the amount specified under Section 7.06(b).
(hereind) The obligations of each Lender under Section 7.06(b) or (c) shall be unconditional and absolute and, “Damages”), actually incurred or suffered by Buyer through without limiting the end generality of the Survival Period and caused by foregoing, shall not be released, discharged or otherwise affected by:
(i) any breach of extension, waiver or consent granted by or to, or agreement with, any representation Borrower, any Guarantor, the CMF, any Lender or warranty made by Seller in this Agreement; any other Person;
(ii) any breach the release of any covenant Borrower, any Guarantor, any Lender or any other Person under the terms of any agreement made by Seller in this Agreement which requires performance after Closing; or arrangement with any creditor of such Person;
(iii) the operations taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Borrower, any Guarantor, the CMF or any other Person or arising under the Tender Offer Guarantee or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realize the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Borrower, any Guarantor, the CMF, any Lender or any other Person;
(v) any amendment (however fundamental) or replacement or extension of or increase in liabilities under or reopening or renewal of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability Tender Offer Guarantee (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained so that references in this Agreement to the Tender Offer Guarantee shall include each such amendment or replacement), this AgreementAgreement or any other document or security;
(vi) any unenforceability, in no event shall Seller have illegality or invalidity of any liability (for indemnification or otherwise) under this Section 6.2 for obligation of any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) Person under this Agreement, provided however, that the Cap Amount shall not apply Tender Offer Guarantee or any other document or security; or
(vii) any insolvency or similar proceedings relating to breach of any Representations and Warranties set out in the Designated SectionsPerson.
Appears in 1 contract
Sources: Credit Agreement (Alcan Inc)
Indemnifications. Seller Nuttall hereby warrants and represents that there has been no purported sale, assignment or other type of conveyance of any interest in the Signs, including but not limited to, the underlying land, any real or personal property interests related thereto, and/or any past, present or future revenue from leasing of the Sign panels to any third party made by ▇▇▇▇▇▇▇ (a “Purported ▇▇▇▇▇▇▇ Conveyance”). To the extent that any third party makes any claim against any POA Released Party to any interest in the Signs, including but not limited to, the underlying land, any real or personal property interests related thereto, and/or any past, present or future revenue from leasing of the Sign panels, based on a Purported ▇▇▇▇▇▇▇ Conveyance, ▇▇▇▇▇▇▇ shall indemnify and defend the POA Released Party as applicable, against any such claim, cause of action, liability, damage or demand of whatever character, including attorneys’ fees, costs, and litigation expenses incurred with respect to thereto. This duty to indemnify and defend shall be a personal obligation of ▇▇▇▇▇▇▇. The POA hereby warrants and represents that, except as set forth in the License Agreement, there has been no purported sale, assignment or other type of conveyance of any interest in the Signs, including but not limited to, the underlying land, any real or personal property interests related thereto, and/or any past, present or future revenue from leasing of the Sign panels to any third party made by the POA (a “Purported POA Conveyance”). To the extent that any third party makes any claim against any ▇▇▇▇▇▇▇ Released Party to any interest in the Signs, including but not limited to, the underlying land, any real or personal property interests related thereto, and/or any past, present or future revenue from leasing of the Sign panels based on a Purported POA Conveyance, the POA shall indemnify and defend the ▇▇▇▇▇▇▇ Released Party as applicable, against any such claim, cause of action, liability, damage or demand of whatever character, including attorneys’ fees, costs, and litigation expenses incurred with respect to thereto. The POA represents and warrants to Nuttall that it has not assigned any POA Sign Claims to any third party. With respect to any personal injury claims of any person or entity associated with the Signs, including but not limited to management, demolition, erection, construction, staging and all activities associated with the Signs or replacement thereof by, on behalf of, the City, the POA, or the City's contractors and subcontractors, arising on or after the Effective Date, the City hereby agrees to indemnify, save defend, and hold harmless Buyerthe ▇▇▇▇▇▇▇ Released Parties for, from and against any and all costs, damages, assessments, penalties, causes of action, or claims for liability of any kind whatsoever (including without limitation for attorneys’ fees, costs, or expenses) that arise out of or relate to any claim, lawsuit, or other legal proceeding asserted, brought, or maintained by or on behalf of the City, its Affiliatespresent, former and future Council, directors, managers, officers, shareholdersemployees, employees attorneys, insurers, claims managers and representatives, contractors, subcontractors, and agents (for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent of entitlement for indemnification, may be herein referred to as a “Buyer Indemnified Party”) from and against all costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses (whether or not arising out of Third Party Claims), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense any other individual or settlement of any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sectionsentity.
Appears in 1 contract
Sources: Settlement Agreement
Indemnifications. Seller shall indemnify(i) In addition to any other indemnity that Borrower may have to Agent or any Lender under any of the other DIP Financing Documents and without limiting such other indemnification provisions, save Borrower hereby agrees to indemnify and defend each of the Agent Indemnitees and Lender Indemnitees and to hold each of the Agent Indemnitees and Lender Indemnitees harmless Buyerfrom and against any and all Claims which any of the Agent Indemnitees or any of the Lender Indemnitees may (other than as the actual result of their own gross negligence or willful misconduct) incur or be subject to as a consequence, its Affiliatesdirectly or indirectly, directorsof (a) the issuance of, officerspayment or failure to pay or any performance or failure to perform under any Letter of Credit or LC Support or (b) any suit, shareholdersinvestigation or proceeding as to which Agent or any Lender is or may become a party to as a consequence, employees directly or indirectly, of the issuance of any Letter of Credit or any LC Support or the payment or failure to pay thereunder.
(ii) Each Participating Lender agrees to indemnify and agents defend each of the Fleet Indemnitees (for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent the Fleet Indemnitees are not reimbursed by Borrower or any other Obligor, but without limiting the indemnification obligations of entitlement for indemnificationBorrower under this Agreement), may be herein referred to as on a “Buyer Indemnified Party”) Pro Rata basis, from and against any and all costsClaims which may be imposed on, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses (whether incurred by or not asserted against any of the Fleet Indemnitees in any way related to or arising out of Third Party ClaimsFleet's administration or enforcement of rights or remedies under any of the LC Documents or any of the transactions contemplated thereby (including costs and expenses that Borrower is obligated to pay under Section 14.2 hereof), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement provided that no Participating Lender shall be liable to any of the Fleet Indemnitees for any of the foregoing (herein, “Damages”), actually incurred to the extent that they result solely from the willful misconduct or suffered by Buyer through the end of the Survival Period and caused by (i) any breach gross negligence of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated SectionsFleet Indemnitees.
Appears in 1 contract
Sources: Loan and Security Agreement (Gulf States Steel Inc /Al/)
Indemnifications. Seller shall (a) In addition to any other applicable rights under this Agreement, Assignor agrees to indemnify, save defend and hold harmless BuyerCompany, its AffiliatesUSFPT and the officers, directors, officerspartners, shareholdersmembers, employees agents, employees, affiliates, attorneys, heirs, successors and agents assigns of both (for purposes of this Article VIcollectively, all of which shall constitute “Buyer” and to the extent of entitlement for indemnification, may be herein referred to as a “Buyer Company’s Indemnified PartyParties”) harmless from and against any and all costs, losses, liabilities, obligationsliens, claims, damages, lawsuitscosts, claimsexpenses, demandssuits or judgments paid or incurred by any of Company’s Indemnified Parties and all expenses related thereto, including, without limitation, court costs and expenses (whether or not arising out of Third Party Claims), including without limitation reasonable attorneys’ fees and all amounts reasonably paid arising out of or in investigation, defense any way connected or settlement of any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by related to (i) any breach or nonperformance by Assignor of any provision or covenant contained in this Agreement or in any certificate or other instrument or document furnished (or to be furnished) by Assignor with respect to the transactions contemplated hereunder, (ii) the breach of any representation or warranty made by Seller of Assignor contained in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or , (iii) any claims by a third party that the operations of right, title and interest in the Company prior to ClosingIntellectual Property granted hereunder infringe upon a third party’s intellectual property or other proprietary rights. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under The indemnities set forth in this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled survive without limitation.
(b) In addition to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) other applicable rights under this Agreement, provided Company agrees to indemnify, defend and hold Assignor and its officers, directors, partners, members, agents, employees, affiliates, attorneys, heirs, successors and assigns (collectively, “Assignor’s Indemnified Parties”) harmless from and against any and all liabilities, liens, claims, damages, costs, expenses, suits or judgments paid or incurred by any of Assignor’s Indemnified Parties and all expenses related thereto, including, without limitation, court costs and reasonable attorneys’ Assignment and License Agreement fees arising out of or in any way connected or related to any infringement claims or other claims asserting a right to use (or a right to prevent the use of) any Intellectual Property, which claims name Assignor as a defendant, to the extent such claims arise from and after the Effective Date. The indemnities set forth in this Section shall survive without limitation.
(c) If any claim (a “Third Party Claim”) is hereafter made by a third party which might result in a right to indemnification hereunder, the party seeking such indemnification (in such instance, the “Indemnitee”) shall make a demand for indemnification hereunder by giving written notice to the party or parties against whom indemnification is sought (the “Indemnitor”) stating in reasonable detail the nature of the Third Party Claim so far as known to the Indemnitee. Such notice shall be given within a reasonable time after the Indemnitee shall become aware of the Third Party Claim; provided, however, that the Cap Amount failure to give timely notice shall not apply relieve the Indemnitor of its obligation to breach indemnify the Indemnitee in respect of the Third Party Claim. The Indemnitee shall permit the Indemnitor to assume the defense of any Representations such Third Party Claim or any litigation resulting therefrom (and Warranties set to prosecute by way of counterclaim or third party complaint any claim against such third party arising out of or relating to such Third Party Claim), so long as the counsel selected to conduct the defense of such Third Party Claim or litigation shall be reasonably satisfactory to the Indemnitee. After such assumption of the defense by the Indemnitor, the Indemnitor shall not be liable under this section for any legal or other expenses subsequently incurred by the Indemnitee in connection with such defense, other than reasonable costs of investigation, but the Indemnitee may participate in such defense at its expense. Notwithstanding, the foregoing, however, if, in the Designated Sectionsreasonable judgment of the Indemnitee, the attorney selected by the Indemnitor cannot ethically, or otherwise fails to, represent the Indemnitor and the Indemnitee, then the Indemnitee may employ separate, mutually acceptable counsel for the Indemnitee at the Indemnitor’s sole cost. If the Indemnitor fails to defend a Third Party Claim promptly, in good faith or with diligence, then the Indemnitee may defend such claims at the expense of the Indemnitor. The Indemnitor shall not, except with the prior written consent of the Indemnitee, consent to the entry of any judgment or enter into any settlement in respect of such Third Party Claims or litigation which (i) does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of an unconditional release from all liability in respect of such Third Party Claim or litigation, (ii) imposes injunctive or other equitable relief against an Indemnitee, the Buyer or any Representative of Buyer or Related Person of the Buyer, (iii) contains any admission of liability or guilt by the Indemnitee, the Buyer, or any Representative of Buyer or Related Person of the Buyer or (iv) requires the Indemnitee to pay any amount of money or otherwise incur any liability or other obligation.
Appears in 1 contract
Sources: Assignment and License Agreement (US Federal Properties Trust Inc.)
Indemnifications. Seller (a) The Corporation shall indemnify, save indemnify and hold harmless Buyerthe Warrantee and each person, its Affiliatesif any, directorswho controls the Warrantee within the meaning of the Securities Act of 1933, officers, shareholders, employees and agents as amended (for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent of entitlement for indemnification, may be herein referred to as a “Buyer Indemnified Party”"Securities Act") from and against any and all costs, losses, liabilities, obligationsclaims, damages, lawsuitsexpenses or liabilities, joint and several, to which they or any of them may become subject under the Securities Act or under any other statute or at common law or otherwise, and, except as hereinafter provided, will reimburse the Warrantee and each such controlling person, if any, for any legal or other expenses reasonably incurred by any of them in connection with investigating or defending any actions, whether or not resulting in any liability, insofar as such losses, claims, demandsdamages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement, any preliminary prospectus or the final prospectus (or the registration statement or prospectus as from time to time amended or supplemented by the Corporation) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such untrue statement or omission was made in reliance upon and in conformity with information furnished in writing to the Corporation in connection therewith by the Warrantee expressly for use therein. Promptly after receipt by the Warrantee or any person controlling the Warrantee of notice of the commencement of any action in respect of which indemnity may be sought against the Corporation, the Warrantee will notify the Corporation in writing of the commencement thereof, and, subject to the provisions hereinafter stated, the Corporation shall assume the defense of such action (including the employment of counsel, who shall be counsel satisfactory to the Warrantee or such person, as the case may be, and the payment of legal expenses), insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the Corporation. The Warrantee or any such controlling person shall have the right to employ separate counsel in any such action and to participate in the defense thereof but the fees and expenses of such counsel shall not be at the expense of the Corporation unless the employment of such counsel has been specifically authorized by the Corporation, which authorization shall be given whenever the party seeking indemnity has been advised by its counsel that one or more legal defenses may be available to it that are not available to the Corporation or that for other reasons separate representation may be necessary, to avoid a conflict. The Corporation shall not be liable to indemnify any person for any settlement of any such action effected without the consent of the Corporation.
(b) The Warrantee will indemnify and hold harmless the Corporation, each of its directors and each of its officers who have signed the registration statement and each person, if any, who controls the Corporation within the meaning of the Securities Act from and against any and all losses, claims, damages, expenses of liabilities, joint and several, to which they are or any of them may become subject under the Securities Act or under any other statute or at common law or otherwise, and, except as hereinafter provided, will reimburse the Corporation and each such director, officer or controlling person for any legal and other expenses reasonably incurred by any of them in connection with investigating or defending any actions, whether or not arising resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of Third Party Claims)or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement, in any preliminary prospectus or in the final prospectus (or the registration statement or prospectus as from time to time amended or supplemented) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein in order to make the statements therein not misleading, but only insofar as any such statement or omission was made in reliance upon and in conformity with information furnished in writing to the Corporation in connection therewith by the Warrantee expressly for use therein. Promptly after receipt of notice of the commencement of any action in respect of which indemnity may be sought against the Warrantee, the Corporation will notify the Warrantee in writing of the commencement thereof, and the Warrantee shall, subject to the provisions hereinafter stated, assume the defense of such action (including without limitation reasonable attorneys’ the employment of counsel, who shall be counsel satisfactory to the Corporation, and the payment of legal expenses) insofar as such action shall relate to an alleged liability in respect of which indemnity may be sought against the Warrantee. The Corporation and each such director, officer or controlling person shall have right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and all amounts reasonably paid in investigationexpenses of such counsel shall not be at the expense of the Warrantee unless the employment of such counsel has been specifically authorized by the Warrantee, defense or which authorization shall be given whenever separate representation may be necessary to avoid a conflict. The Warrantee shall not be liable to indemnify any person of any settlement of any such action effected without the consent of the foregoing Warrantee.
(herein, “Damages”), actually incurred or suffered by Buyer through the end c) The indemnity provisions of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer 8 shall be entitled in addition to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sectionsindemnitor may otherwise have.
Appears in 1 contract
Sources: Warrant Agreement (Satx Inc)
Indemnifications. Seller (a) Subject to the limitations and procedures described herein, each of the Sellers, severally but not jointly, shall indemnify, save indemnify and hold harmless harmless, the Buyer, its Affiliatessubsidiaries (including the Company), its controlling persons, the respective directors, officers, shareholders, employees and agents of any of the foregoing and each of the heirs, executors, successors and permitted assigns of any of the foregoing (each, a "BUYER INDEMNITEE"), from and against any and all claims, losses, liabilities, damages, costs, penalties, fines, costs and expenses (including reasonable attorneys' fees and expenses) (collectively, "DAMAGES"), incurred or suffered by a Buyer Indemnitee resulting from or arising out of (i) an inaccuracy in any of the representations and warranties of such Seller set forth in Article II, (ii) an inaccuracy in any of the representations and warranties of the Sellers set forth in Article III, (iii) a breach by such Seller of any covenant or agreement of such Seller contained in this Agreement, (iv) such Seller's failure to pay his share, based on his Pro Rata Percentage, of the costs and expenses that are the responsibility of the Sellers under Section 7.04 and/or (v) such Seller's failure to pay his share of the Specified Liabilities assumed by the Sellers under the Assumption Agreement as set forth therein.
(b) Subject to the limitations and procedures described herein, the Buyer shall indemnify and hold harmless each Seller, and each of the heirs, executors, successors and permitted assigns thereof (each, a "SELLER INDEMNITEE" and, together with a Buyer Indemnitee, an "INDEMNITEE"), from and against any and all Damages incurred or suffered by a Seller Indemnitee resulting from or arising out of (i) an inaccuracy in any of the representations and warranties of the Buyer set forth in Article IV, (ii) a breach by the Buyer of any covenant or agreements of the Buyer contained in this Agreement and/or (iii) costs and expenses that are the responsibility of the Buyer under Section 7.04.
(c) No individual Seller's indemnification obligation for Damages under Section 6.02(a)(ii) shall exceed such Seller's Pro Rata Percentage of such Damages.
(d) No Seller shall be liable for Damages resulting from (i) the inaccuracy of a representation or warranty which is given individually by another Seller or (ii) a breach of a covenant which is the individual obligation of another Seller.
(e) The indemnification by any Seller in favor of the Buyer Indemnitees contained in Sections 6.02(a)(i) and 6.02(a)(ii), other than with respect to an inaccuracy of such Seller's representations in Sections 2.01, 2.02, 2.07, 3.06, 3.07(c) or 3.15, shall not be effective until the aggregate dollar amount of all Damages indemnified against under such Sections by such Seller exceeds his Pro Rata Percentage of fifty thousand dollars ($50,000) (for each Seller, a "THRESHOLD AMOUNT"), and then only to the extent such aggregate amount exceeds such Seller's Threshold Amount. In addition, the indemnification by any Seller in favor of the Buyer Indemnitees contained in Sections 6.02(a)(i) and 6.02(a)(ii) (other than with respect to an inaccuracy of such Seller's representations in Sections 2.01, 2.07, 3.06 or 3.15, which shall not have a limitation) shall terminate once the dollar amount of all Damages indemnified under such Sections by such Seller exceeds his Pro Rata Percentage of two million, six hundred sixty-seven thousand dollars ($2,667,000).
(f) The indemnification by the Buyer in favor of the Seller Indemnitees contained in Section 6.02(b)(i), other than with respect to an inaccuracy of the Buyer's representations in Sections 4.07 or 4.09, shall not be effective until the aggregate dollar amount of all Damages indemnified against under such Section exceeds fifty thousand dollars ($50,000) (the "BUYER'S THRESHOLD AMOUNT"), and then only to the extent such aggregate amount exceeds the Buyer's Threshold Amount. In addition, the indemnification by the Buyer in favor of the Seller Indemnitees contained in Section 6.02(b)(i) (other than with respect to an inaccuracy of the Buyer's representations in Sections 4.07 or 4.09, which shall not have a limitation) shall terminate once the dollar amount of all Damages indemnified under such Sections exceeds two million, six hundred sixty-seven thousand dollars ($2,667,000).
(g) Any recovery made by a Buyer Indemnitee under this Article VI shall be first made from the Escrow Amount in the manner described herein and in the Escrow Agreement and after the Escrow Agreement has terminated, or in the event that the Escrow Amount is insufficient, recovery may be made against the Sellers in any manner permitted by Law, subject to the limitations of Sections 6.02(c), 6.02(d), 6.02(e) and 7.12.
(h) For purposes of this Article VI, White may use any and all of which shall constitute “Buyer” and the Buyer Shares received by him to satisfy any of his indemnification obligations to the extent Buyer. For such purposes, each Buyer Share shall be valued at the average of entitlement the last sale prices for indemnificationthe Buyer Common Stock, may be herein referred to as reported by Nasdaq, for the five (5) most recent trading days on which a “sale of the Buyer Indemnified Party”Common Stock occurred preceding the date of the notice from the Buyer asserting its claim (x) from and against all costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses for indemnification under this Agreement and/or (whether or not arising out of Third Party Claims), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement y) for release of any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through Escrow Amount under the end of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Escrow Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sections.
Appears in 1 contract
Sources: Stock Purchase Agreement (Maxcor Financial Group Inc)
Indemnifications. (a) TPTG shall indemnify Seller shall indemnify, against and save and hold Seller and Shareholders of Seller and their heirs, estates, legatees, devisees, legal and personal representatives, successors and assigns (collectively the "Indemnified Parties") forever harmless Buyerfrom any and all accounts, its Affiliatesactions, directorsassessments, officerscauses of action, shareholdersclaims, employees and agents (for purposes of this Article VIcontracts, all of which shall constitute “Buyer” and to the extent of entitlement for indemnificationcontroversies, may be herein referred to as a “Buyer Indemnified Party”) from and against all costs, covenants, damages, debts, demands, disbursements, expenses, interest, liabilities, losses, liabilitiesjudgments, obligationspenalties, promises and suits whatsoever (including without limitation punitive and consequential damages) , lawsuits, claims, demandsincluding all reasonable attorneys' fees and expenses of counsel, and other reasonable expenses (incurred by an Indemnified Party in connection with the investigation of, preparation for, or defense of, any pending or threatened claim, action or proceeding, whether or not resulting in any liability and whether or not such Indemnified Party is a party, which fees and expenses shall be paid or reimbursed by TPTG as they are incurred by the Indemnified Party), imposed upon, incurred or sustained by, or asserted against an Indemnified Party, as a result of or arising out of Third Party Claims), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by virtue of:
(i) any TPTG's operation of Seller or its use of the assets (including the licenses) of Seller after the Closing Date;
(ii) Any breach of any representation or warranty made by TPTG to Seller herein or in this Agreementany agreement, document , or instrument executed and delivered pursuant hereto or in connection herewith; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or and
(iii) The failure of TPTG to comply with, or the operations breach by TPTG of, any of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total covenants of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreementin any agreement, document or instrument executed and delivered pursuant hereto or in no event shall Seller have any liability connection herewith, to be performed by TPTG (for indemnification or otherwise) under including, without limitation, this Section 6.2 for 9.02(a). The Indemnified Party shall give TPTG written notice of any costsmatter hereby indemnified against, lossesand TPTG shall satisfy, liabilitiespay and discharge any and all of an Indemnified Party's above- described claims, obligationsdemands , damages, lawsuitscosts, claimsexpenses, demandsetc. under this indemnity within ten (10) days of the sending of said notice. In the event that the matter indemnified hereunder involves an action at law or in equity against an Indemnified Party by a 3rd party, or any type of quasi- judicial, administrative or other type of proceeding against an Indemnified Party by a 3rd party, the Indemnified Party shall give TPTG written notice of said matter within ten (10) days of discovery thereof. TPTG may and, upon the Indemnified Party's request, shall at TPTG's expense, resist and defend such matter by counsel selected by TPTG and reasonably approved by the Indemnified Party. The appearance of an Indemnified Party in any such defense shall not constitute a waiver of its right to require TPTG to fulfill its obligations under this indemnity. An Indemnified Party shall provide such information and cooperation as TPTG shall reasonably request, and expensesTPTG shall satisfy, which pay and discharge any and all judgments and fines that may be recovered against an Indemnified Party in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sectionssuch action or actions.
Appears in 1 contract
Sources: Acquisition and Purchase Agreement (TPT Global Tech, Inc.)
Indemnifications. Seller shall indemnify(i) In addition to any other indemnity which any or all Borrowers may have to Agent or any Lender under any of the other Loan Documents and without limiting such other indemnification provisions, save each Borrower hereby agrees to indemnify and defend each of the Agent Indemnitees and Lender Indemnitees and to hold each of the Agent Indemnitees and Lender Indemnitees harmless Buyerfrom and against any and all Claims which any of the Agent Indemnitees or any of the Lender Indemnitees may (other than as the actual result of their own gross negligence or willful misconduct) incur or be subject to as a consequence, its Affiliatesdirectly or indirectly, directorsof (a) the issuance of, officerspayment or failure to pay or any performance or failure to perform under any Letter of Credit or LC Support or (b) any suit, shareholdersinvestigation or proceeding as to which Agent or any Lender is or may become a party to as a consequence, employees directly or indirectly, of the issuance of any Letter of Credit or any LC Support or the payment or failure to pay thereunder.
(ii) Each Participating Lender agrees to indemnify and agents defend each of the Fleet Indemnitees (for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent the Fleet Indemnitees are not reimbursed by Borrowers or any other Obligor, but without limiting the indemnification obligations of entitlement for indemnificationBorrowers under this Agreement), may be herein referred to as on a “Buyer Indemnified Party”) Pro Rata basis, from and against any and all costsClaims which may be imposed on, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses (whether incurred by or not asserted against any of the Fleet Indemnitees in any way related to or arising out of Third Party ClaimsFleet’s administration or enforcement of rights or remedies under any of the LC Documents or any of the transactions contemplated thereby (including costs and expenses which Borrowers are obligated to pay under Section 14.2 hereof), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement provided that no Participating Lender shall be liable to any of the Fleet Indemnitees for any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification extent that they result solely from the willful misconduct or otherwise) under this Section 6.2 until the total gross negligence of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sectionssuch Fleet Indemnitees.
Appears in 1 contract
Indemnifications. Seller (a) Developers shall indemnify, save jointly and severally (i) indemnify and hold harmless BuyerCompuCredit, its Affiliates, directors, officers, shareholdersdirectors and CompuCredit Affiliates (collectively, employees and agents (for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent of entitlement for indemnification, may be herein referred to as a “Buyer Indemnified Party”"CompuCredit Parties") from and against all any liability, cost, loss or expense of any kind (including but not limited to attorneys fees and court costs, losses, liabilities, obligations, damages, lawsuits, claims, demands), and expenses (whether ii) defend, through use of legal counsel chosen by Developers, any suit or not proceeding against a CompuCredit Party, in the case of both (i) and (ii) arising out of or based on any claim, demand or action alleging that a System Deliverable or any other product or service provided by a Developer to CompuCredit under this Agreement infringes any copyright, patent, trademark, trade secret or other intellectual property or other proprietary right of any third party (a "Third Party ClaimsIP Right"). Developers shall have no obligations hereunder to the extent that such claim, including without limitation reasonable attorneys’ fees demand or action arises from or occurs as a result of (i) the use of the System Deliverable in combination with unapproved items unless the Developers specifically recommended them as a combination or under the circumstances Developers could reasonably be expected to have contemplated that CompuCredit would use the System Deliverable in connection with such items, or (ii) the failure of CompuCredit to implement changes, replacements, or new releases recommended by Developer(s) and all amounts reasonably paid in investigationmade available to CompuCredit at no cost or nominal cost, defense where such claim, demand or settlement action would have been avoided by such changes, replacements or new releases. Notwithstanding the foregoing, Developers shall not have any liability under this section or otherwise to CompuCredit for any liability, cost, loss or expense of any kind arising out of or based on any actual or alleged violation of the Fair Credit and Reporting Act ("FCRA").
(b) In the event that a System Deliverable or any other product or service provided by a Developer to CompuCredit hereunder is held in any such suit or proceeding to infringe a Third Party IP Right, or if any Developer believes that there is a reasonable basis for such an infringement claim to be asserted or that a System Deliverable or any such other product or service is infringing, then Developers, at their expense, shall take one of the following remedial actions (the choice of which action Developers should take shall be made mutually by the Parties):
(i) procure for CompuCredit the right to continue using the allegedly infringing item or service; or (ii) replace the allegedly infringing item or service with one that is not infringing, that is the functional equivalent of the replaced item and that meets any applicable Performance Criteria. If neither of the foregoing options is reasonably available, CompuCredit agrees to cease all use of such infringing or potentially infringing System Deliverables.
(herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period c) Developers shall jointly and caused by severally (i) indemnify and hold harmless the CompuCredit Parties from and against any breach liability, cost, loss or expense of any kind (including but not limited to attorneys fees and court costs), and (ii) defend, through use of legal counsel chosen by Developers, any suit or proceeding against a CompuCredit Party, in the case of both (i) and (ii), arising out of or based on any material inaccuracy in any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained Developers in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for material breach by any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) Developer of the purchase price paid by Buyer to Seller (the “Cap Amount”) any of its obligations under this Agreement.
(d) CompuCredit shall (i) indemnify and hold harmless the Developers, provided howevertheir officers, that directors and affiliated entities (collectively, the Cap Amount shall not apply to breach "Developer Parties") from and against any liability, cost, loss or expense of any Representations kind (including but not limited to attorneys fees and Warranties set out court costs), and (ii) defend, through use of legal counsel chosen by CompuCredit, any suit or proceeding against a Developer Party, in the Designated Sectionscase of both (i) and (ii) arising out of or based on any claim, demand or action alleging any violation of or otherwise relating to the FCRA.
(e) CompuCredit shall (i) indemnify and hold harmless the Developer Parties from and against any liability, cost, loss or expense of any kind (including but not limited to attorneys fees and court costs), and (ii) defend, through the use of legal counsel chosen by CompuCredit any suit or proceeding against a Developer Party, in the case of both (i) and (ii), arising out of or based on any material inaccuracy in any representation or warranty of CompuCredit in this Agreement or any material breach by CompuCredit of any of its obligations under this Agreement.
(f) The indemnification obligations set forth herein shall survive for one year after the termination of this Agreement.
Appears in 1 contract
Indemnifications. Seller (a) Sellers and IHS, jointly and severally, shall indemnify, save indemnify and hold harmless BuyerPurchaser and its partners, its Affiliatesofficers, directors, officers, shareholders, employees employees, agents, and agents assigns (for purposes of this Article VIcollectively, the "Purchaser Indemnified Parties"), from any and all of which shall constitute “Buyer” and to the extent of entitlement for indemnification, may be herein referred to as a “Buyer Indemnified Party”) from and against all costs, losses, liabilities, obligations, damageslosses, lawsuitsdemands, judgments, actions, suits, causes of action, claims, demandsproceedings, investigations, citations, matters, damages, penalties, sanctions, costs, expenses, and expenses disbursements (whether or not arising out of Third Party Claims)including, including without limitation reasonable attorneys’ ' and consultants' fees and all amounts reasonably paid in investigationexpenses), defense whether or settlement not subject to litigation (hereinafter collectively referred to as the "Claims") of any of the foregoing (hereinkind or character imposed upon, “Damages”)arising out of, actually in connection with, incurred or suffered by Buyer through in any way attributed or relating to the end of the Survival Period and caused by (i) any breach or failure of any representation or warranty made by Seller Sellers that is contained in Sections 7.1, 7.2 and 7.3 hereof and made by IHS that is contained in Sections 8.1, 8.2 and 8.3 hereof. Sellers and IHS further covenant and agree to defend the Purchaser Indemnified Parties on account of said Claims and to pay any judgment against the Purchaser Indemnified Parties, or any other amount as indicated in this Agreement; (ii) Section 12.6(a), along with all reasonable costs and expenses relative to any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary hereinsuch Claims, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, including reasonable and documented attorneys' fees and expenses; provided, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall Purchaser Indemnified Parties shall, nevertheless, have the right, if they so elect, to participate (with counsel of their choosing, which counsel must be approved by Sellers and IHS, which approval may not apply to breach be unreasonably withheld) in the defense of any Representations such Claim in which they may be a party without relieving Sellers and Warranties set out in IHS, of the Designated Sectionsobligation to defend the same. To the extent applicable, the Purchaser Indemnified Parties covenant not to settle or compromise any Claim under this section without the written consent of Sellers and IHS, which consent may not be unreasonably withheld or delayed under the circumstances. Failure to comply with the preceding covenant shall be deemed a complete waiver of any rights that the Purchaser Indemnified Parties have or may have under this Section 12.6(a).
Appears in 1 contract
Sources: Facilities Purchase Agreement (Monarch Properties Inc)
Indemnifications. Seller shall indemnify, save and hold harmless Buyer(a) Each Investor, its AffiliatesAffiliates and its and their respective officers, directors, officersmembers, shareholdersemployees, employees managers, general partners, advisors and agents (each, an “Indemnitee”) shall be indemnified to the fullest extent permitted by law by the Company, jointly and severally, for purposes any and all Losses to which such Indemnitees may become subject as a result of, arising in connection with, or relating to any actual or threatened claim, suit, action, arbitration, cause of this Article VIaction, all complaint, allegation, criminal prosecution, investigation, inquiry, demand letter, or proceeding, whether at law or at equity, direct or derivative and whether public or private, before or by any Governmental Entity, any arbitrator or other tribunal (each, and including any appeals therefrom, an “Action”) by any third party (including, without limitation, any stockholder of which the Company or any regulator and including Losses arising from Actions not directly against an Indemnitee, such as witness expenses or responding to inquiries from a Governmental Entity) related to the Transactions; provided that the Company shall constitute “Buyer” and not be liable to indemnify any Indemnitee for any such Losses to the extent of entitlement for indemnification, may be herein referred to as a “Buyer Indemnified Party”) from and against all costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses (whether or not arising out of Third Party Claims), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by that such Losses (i) any have resulted from an Investor’s breach of any representation or warranty made by Seller in this Agreement; , (ii) related to any breach transaction or arrangement, including any financing or hedging arrangement or trading in Company Common Stock, of any covenant such Investor or agreement made by Seller its Affiliates in this Agreement which requires performance after Closing; connection with the applicable Investor’s or its Affiliates’ investment in the New Notes or (iii) have resulted from an Indemnitee’s willful misconduct or fraud in connection with the operations of Transactions; provided, further, that the Company prior shall not be liable to Closing. Notwithstanding anything to the contrary hereinindemnify an Indemnitee or its Affiliates and its and their respective officers, Seller will have no liability (for indemnification or otherwise) directors, members, employees, managers, general partners, advisors and agents under this Section 6.2 until 4.09 unless such Indemnitee provides notice of an Action for which indemnification is sought no later than six (6) months following the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregateClosing Date, in which case Buyer the Company’s indemnification obligations under this Section 4.09 shall cover such Action and any appeals therefrom. The parties agree, for the avoidance of doubt, that this Section 4.09 shall not apply to any matter for which indemnification is otherwise provided in Section 5.06.
(b) Each Indemnitee shall give the Company prompt written notice (an “Indemnification Notice”) of any Action it has actual knowledge of that might give rise to Losses for which an Indemnitee would reasonably be likely to be entitled to indemnification under this Section 4.09, which notice shall set forth a description of those elements of such Action of which such Indemnitee has knowledge and promptly deliver to the Company any complaints such Action or other documents provided to such Indemnitee in connection with; provided, that any delay or failure to give such Indemnification Notice shall not affect the indemnification obligations of the Company hereunder except to the extent the Company are materially prejudiced by such delay or failure.
(c) The Company shall have the right, exercisable by written notice to the applicable Indemnitee within thirty (30) days of receipt of the applicable Indemnification Notice, to select counsel to defend and control the defense of any third party claim set forth in such Indemnification Notice and the Company shall pay all fees and expenses of such counsel; provided, that the Company shall not be entitled to so select counsel or control the defense of any claim to the extent that (i) such claim seeks primarily non-monetary or injunctive relief against the Indemnitee or alleges any violation of criminal law, (ii) the Company does not, subsequent to its assumption of such defense in accordance with this clause (c), conduct the defense of such claim in good faith, (iii) any of the Indemnitees reasonably determines upon the advice of counsel that representation of all such Indemnitees by the same counsel would be prohibited by applicable codes of professional conduct, or (iv) in the event that, based on the reasonable advice of counsel for the entire amount of Damages. Notwithstanding anything applicable Indemnitee, there are one or more material defenses available to the contrary contained applicable Indemnitee that are not available to other defendants. If the Company does not assume the defense of any third party claim in accordance with this Agreement or this Agreementclause (c), in the applicable Indemnitee may continue to defend such claim at the sole cost of the Company and the Company may still participate in, but not control, the defense of such third party claim at the Company’s sole cost and expense. In no event shall Seller have the Company, in connection with any liability Action or separate but substantially similar Actions arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnitees chosen by the applicable Investor together with its Affiliates, and one separate firm of local counsel, in addition to regular counsel, to the extent required in order to effectively defend the Action.
(d) No Indemnitee shall consent to a settlement of, or the entry of any judgment arising from, any claim for which such Indemnitee is entitled to indemnification or otherwise) under pursuant to this Section 6.2 4.09, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed). Except with the prior written consent of the applicable Indemnitee, the Company, in the defense of any claim for which such Indemnitee is entitled to indemnification pursuant to this Section 4.09, shall not consent to the entry of any costsjudgment or enter into any settlement unless such settlement includes (i) an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, lossesculpability or a failure to act by or on behalf of any indemnified party. In any such third party claim where the Company has assumed control of the defense thereof pursuant to clause (c), liabilitiesthe Company shall keep the applicable Indemnitee reasonably informed as to the status of such claim at all stages thereof (including all settlement negotiations and offers), obligationspromptly submit to such Indemnitee copies of all pleadings, damagesresponsive pleadings, lawsuitsmotions and other similar legal documents and paper received or filed in connection therewith, claims, demandspermit such Indemnitee and their respective counsels to confer with the Company and its counsel with respect to the conduct of the defense thereof, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer permit such Indemnitee and their respective counsel a reasonable opportunity to Seller (the “Cap Amount”) under this Agreement, review all legal papers to be submitted prior to their submission; provided however, that the Cap Amount Company shall not apply be obligated to breach provide materials, documents or information the disclosure of any Representations which would reasonably be likely to jeopardize the attorney-client privilege between the Company and Warranties set out in the Designated Sectionsits counsel or violate applicable law.
Appears in 1 contract
Indemnifications. Seller shall indemnify, save (a) The Company will indemnify and hold harmless Buyereach Underwriter against any losses, its Affiliatesclaims, directorsdamages or liabilities, officersjoint or several, shareholdersto which such Underwriter may become subject, employees under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact or necessary to make the statements therein not misleading, and agents (will reimburse each Underwriter for purposes of this Article VIany legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, all of which however, that the Company shall constitute “Buyer” and not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of entitlement or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by you expressly for indemnificationuse therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through you expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; provided that, the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (which counsel may at the option of the indemnifying party be counsel to the indemnifying party unless (1) the indemnified party has reasonably concluded (based upon advice of counsel to the indemnified party) that there may be herein referred legal defenses available to as it or other indemnified parties that are different from or in addition to those available to the indemnifying party or (2) a “Buyer Indemnified Party”conflict or potential conflict exists (based upon advice of counsel to the indemnified party) between the indemnified party and the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. If the indemnifying party does not assume the defense of such action, it is understood that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to one separate firm of local attorneys in each such jurisdiction when reasonably necessary but not to include two firms in the same jurisdiction) at any time for all such indemnified parties. The indemnifying party shall not be liable for any settlement of an action or claim for monetary damages effected without its consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying party shall indemnify each indemnified party from and against all costsany loss or liability by reason of such settlement or judgment. No indemnifying party shall, losseswithout the written consent of the indemnified party, liabilitieseffect the settlement or compromise of, obligationsor consent to the entry of any judgment with respect to, damages, lawsuits, claims, demands, and expenses any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of Third Party Claims), including without limitation reasonable attorneys’ fees such action or claim and all amounts reasonably paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any covenant or agreement made by Seller indemnified party.
(d) If the indemnification provided for in this Agreement which requires performance after Closing; Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (iiib) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the operations amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company prior on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to Closingbe in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding anything the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the contrary herein, Seller will have no liability public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (for indemnification or otherwisewithin the meaning of Section 11(f) under this Section 6.2 until of the total of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer Act) shall be entitled to indemnification for the entire amount contribution from any person who was not guilty of Damagessuch fraudulent misrepresentation. Notwithstanding anything to the contrary contained The Underwriters’ obligations in this Agreement or this Agreement, subsection (d) to contribute are several in no event shall Seller have any liability proportion to their respective underwriting obligations and not joint.
(for indemnification or otherwisee) The obligations of the Company under this Section 6.2 for 9 shall be in addition to any costsliability which the Company may otherwise have and shall extend, lossesupon the same terms and conditions, liabilitiesto each person, obligationsif any, damages, lawsuits, claims, demands, and expenses, which in who controls any Underwriter within the aggregate exceeds fifty percent (50%) meaning of the purchase price paid by Buyer to Seller (Act; and the “Cap Amount”) obligations of the Underwriters under this AgreementSection 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, provided howeverupon the same terms and conditions, that to each officer and director of the Cap Amount shall not apply Company and to breach each person, if any, who controls the Company within the meaning of any Representations and Warranties set out in the Designated SectionsAct.
Appears in 1 contract
Sources: Underwriting Agreement (TRW Automotive Holdings Corp)
Indemnifications. Seller 1. Licensee shall indemnify, save defend and hold harmless BuyerNAR, its AffiliatesCSRE, and their respective officers, directors, officersmembers, shareholders, agents and employees and agents (for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent of entitlement for indemnification, may be herein referred to as a “Buyer Indemnified PartyParties”) from and against all costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, costs and expenses (whether or not including attorney’s fees), arising out of Third Party Claims)or in connection with Licensee’s offering or promotion of the Course and/or Presentation, including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by allegations of: (i) any breach of any representation or warranty made by Seller in this Agreementdefamation; (ii) noncompliance with Title III of the Americans with Disabilities Act; (iii) harassment, unlawful discrimination or other misconduct; (iv) infringement of the intellectual property rights of third parties arising from authorized or unauthorized changes made to any breach Course and/or Presentation by Licensee or Instructor; (v) noncompliance with any applicable local, state and federal laws, including without limitation laws that govern the promotion of any covenant or agreement made Course and/or Presentation by Seller in this Agreement which requires performance after Closingtelephone, email and facsimile, and other relevant privacy laws; or (iiivi) the operations of the Company prior inaccuracy or incompleteness in any unauthorized modifications to ClosingCourse and/or Presentation made by Licensee or Instructor. Notwithstanding anything to the contrary hereinLicensee shall further indemnify, Seller will have no liability (for indemnification or otherwise) under this Section 6.2 until the total of defend and hold harmless Indemnified Parties from and against all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demandscosts and expenses (including attorney’s fees), arising out of or in connection with any disputes arising from the engagement of instructors pursuant to Section [III(D)] hereof, including disputes regarding instructor payments and contracts or other agreements entered into between Licensee and instructors.
2. CSRE shall indemnify, defend and hold harmless Licensee and its respective officers, directors, agents and employees from and against all liabilities, claims, costs and expenses (including reasonable attorney’s fees), arising out of or in connection with an allegation that the Materials or Presentation, as provided by CSRE, infringed on the intellectual property rights of third parties. This Section II(C)(2) will not apply, and expensesCSRE shall have no obligations hereunder, which for any materials reproduced or used in violation of Section III(E) “Materials” hereof.
3. The indemnity provisions will survive the aggregate exceeds fifty percent (50%) termination or expiration of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sections.
Appears in 1 contract
Sources: License Agreement
Indemnifications. Seller shall (a) Distributor hereby agrees to indemnify, save defend and hold harmless BuyerAltaRex, its AffiliatesAffiliates and all officers, directors, officers, shareholders, employees and agents (for purposes of this Article VIthereof from all liabilities, all of which shall constitute “Buyer” and to the extent of entitlement for indemnificationclaims, may be herein referred to as a “Buyer Indemnified Party”) from and against all costsdamages, losses, liabilitiescosts, obligations, damages, lawsuits, claimsexpenses, demands, suits and expenses actions (whether or not arising out of Third Party Claims), including without limitation reasonable attorneys’ legal fees (on a solicitor and all amounts reasonably paid in investigationclient full indemnity basis), defense or expenses and settlement of any of the foregoing costs) (hereincollectively, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by ) arising out of: (i) any Distributor’s breach of any representation or warranty made by Seller in of its obligations under this Agreement; (ii) any breach of any covenant or agreement made by Seller Distributor’s failure to comply with applicable laws and regulations in this Agreement which requires performance after Closing; the Market where the Product is resold or (iii) Distributor’s making representations or warranties which are not authorized by AltaRex hereunder.
(b) AltaRex hereby agrees to indemnify, defend and hold harmless Distributor, its Affiliates and all officers, directors, employees and agents thereof from all Damages arising out of: (i) AltaRex’s breach of any of its obligations under this Agreement; (ii) the operations Product infringing on the intellectual property rights of third parties or misappropriating any trade secrets of third parties; (iii) personal injuries or damages suffered by third parties due to the Product not compliant to the warranty set forth in Section 6.1 hereto; or (iv) personal injuries or damages suffered by third parties due to intrinsic or hidden defects of the Company prior Products.
(c) In the event a claim is based partially on an indemnified claim described in Sections 6.3(a) and/or 6.3(b) above and partially on a non-indemnified claim, or is based partially on a claim described in Section 6.3(a) above and partially on a claim described in Section 6.3(b) above, any payments and reasonable legal fees incurred in connection with such claims are to Closing. Notwithstanding anything be apportioned between the Parties in accordance with the degree of cause attributable to the contrary herein, Seller will have no liability each Party.
(for indemnification or otherwised) The indemnified Party under this Section 6.2 until 6.3 hereby agrees that (i) the total indemnified Party shall provide prompt written notice of all Damages actually incurred any such claim to the indemnifying Party; (ii) the indemnifying Party shall have sole control and authority with respect to the defense or suffered by Buyer hereunder exceeds $5,000 settlement of any such claim; and (iii) the indemnified Party shall cooperate fully with the indemnifying Party, at the indemnifying Party’s sole cost and expense, in the aggregatedefense of any such claim. Any settlement of any such claims that imposes any liability or limitation on the indemnified Party shall not be entered into without the prior written consent of the indemnified Party.
(e) In the event that any Product is held in a suit or proceeding to infringe any intellectual property rights or misappropriate any trade secrets of a third party and the use of such Product is enjoined, or AltaRex reasonably believes that it is likely to be found to infringe or likely to be enjoined, then AltaRex shall, at its sole cost and expense, either (i) procure for Distributor the right to continue distributing such Product; or (ii) modify such Product so that it becomes non-infringing. If AltaRex determines, in its sole discretion, that neither (i) nor (ii) are commercially practicable, then AltaRex may terminate this Agreement with respect to such Product upon giving Distributor ninety (90) days prior written notice, and, upon any such termination, repurchase the Products which case Buyer Distributor purchased from AltaRex and which are unaltered and in saleable condition, at the price which Distributor paid AltaRex for such Products, upon delivery of such Products to AltaRex's designated facility, at AltaRex's expense, as well as transportation expenses paid by Distributor in order to withdraw such Product.
(f) AltaRex shall have no obligation for any claim of infringement arising from: (i) any combination of the Product with products not supplied or approved in writing by AltaRex, where such infringement would not have occurred but for such combination; (ii) the adaptation or modification of the Product not performed by AltaRex, where such infringement would not have occurred but for such adaptation or modification; (iii) the use of the Product in an application for which it was not designed, where such infringement would not have occurred but for such use; or (iv) a claim based on intellectual property rights owned by Distributor, its Subdistributors or any of their Affiliates.
(g) This Section 6.4 is the Distributor’s and its Subdistributors’ sole and exclusive remedy in the event that a Product infringes on the intellectual property right of, or misappropriates the trade secrets of, any third party.
(h) The Distributor shall give AltaRex notice of any acts of infringement by third parties involving AltaRex’s technology, the Product or AltaRex’s patent rights of which the Distributor receives knowledge and AltaRex need not consult with the Distributor to determine the course of action, if any, to be taken in such circumstances. AltaRex shall use all reasonable efforts to defend the AltaRex technology, the Product or AltaRex’s patent rights against any such infringement at AltaRex’s sole expense. The Distributor may, at its sole discretion, assist AltaRex in proceeding against an infringer. Any compensation received in a settlement or any legal proceedings shall, after the Distributor and AltaRex have covered their respective reasonable third party costs, legal costs (on a solicitor and client full indemnity basis) and expenses related to such action, be paid entirely to AltaRex.
(i) If AltaRex fails to bring suit or take action against such third party, the Distributor may elect to take action and AltaRex shall within thirty (30) days of such election provide the Distributor with all relevant information about the circumstance of such infringement or unauthorized use, including such evidence of infringement as AltaRex may possess. Any suit or action by the Distributor shall be entitled either in the name of the Distributor, or in the name of AltaRex, or jointly by the Distributor and AltaRex. AltaRex shall provide all reasonable assistance to indemnification the Distributor, including without limitation executing all documents as may be reasonably requested by the Distributor in connection with such suit or action. Any compensation received in a settlement or any legal proceedings shall, after the Distributor and AltaRex have covered their respective reasonable third party costs, legal costs (on a solicitor and client full indemnity basis) and expense related to such action, be entirely for the entire amount of Damages. Notwithstanding anything to Distributor.
(j) Each party shall promptly notify the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which other in the aggregate exceeds fifty percent (50%) event of the purchase price paid receipt of notice of any action, suit or claim alleging infringement by Buyer the Product of a patent held by a third party. AltaRex shall use all reasonable commercial efforts to Seller (defend any action, suit or claim brought against the “Cap Amount”) under this AgreementDistributor as a result of such infringement and bear all costs and expenses related thereto. The Distributor shall, provided howeverat AltaRex’s expense, provide reasonable assistance to AltaRex including, without limitation, executing all documents as may be reasonably requested by AltaRex in connection with such suit or action. In the event that the Cap Amount Distributor should incur liability against any third party or any third party should be awarded damages against the Distributor in any such action, suit or claim AltaRex shall not apply to breach of any Representations indemnify and Warranties set out in hold the Designated SectionsDistributor harmless against all such liability or damages.
Appears in 1 contract
Indemnifications. Seller shall indemnify(i) In addition to any other indemnity which Borrowers may have to Agent or any Lender under any of the other Loan Documents and without limiting such other indemnification provisions, save each Borrower hereby agrees to indemnify and defend each of the Agent Indemnitees and Lender Indemnitees and to hold each of the Agent Indemnitees and Lender Indemnitees harmless Buyerfrom and against any and all Indemnified Claims which any of the Agent Indemnitees or any of the Lender Indemnitees may (other than as the actual result of their own gross negligence or willful misconduct) incur or be subject to as a consequence, its Affiliatesdirectly or indirectly, directorsof (a) the issuance of, officerspayment or failure to pay or any performance or failure to perform under any Letter of Credit or LC Support or (b) any suit, shareholdersinvestigation or proceeding as to which Agent or any Lender is or may become a party to as a consequence, employees directly or indirectly, of the issuance of any Letter of Credit or any LC Support or the payment or failure to pay thereunder.
(ii) Each Participating Lender agrees to indemnify and agents defend each of the Fleet Indemnitees (for purposes of this Article VI, all of which shall constitute “Buyer” and to the extent the Fleet Indemnitees are not reimbursed by Borrowers or any other Obligor, but without limiting the indemnification obligations of entitlement for indemnificationBorrowers under this Agreement), may be herein referred to as on a “Buyer Indemnified Party”) Pro Rata basis, from and against any and all costsIndemnified Claims which may be imposed on, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses (whether incurred by or not asserted against any of the Fleet Indemnitees in any way related to or arising out of Third Party ClaimsFleet's administration or enforcement of rights or remedies under any of the LC Documents or any of the transactions contemplated thereby (including costs and expenses which Borrowers are obligated to pay under SECTION 14.2 hereof), including without limitation reasonable attorneys’ fees and all amounts reasonably paid in investigation, defense or settlement provided that no Participating Lender shall be liable to any of the Fleet Indemnitees for any of the foregoing (herein, “Damages”), actually incurred or suffered by Buyer through the end of the Survival Period and caused by (i) any breach of any representation or warranty made by Seller in this Agreement; (ii) any breach of any covenant or agreement made by Seller in this Agreement which requires performance after Closing; or (iii) the operations of the Company prior to Closing. Notwithstanding anything to the contrary herein, Seller will have no liability (for indemnification extent that they result solely from the willful misconduct or otherwise) under this Section 6.2 until the total gross negligence of all Damages actually incurred or suffered by Buyer hereunder exceeds $5,000 in the aggregate, in which case Buyer shall be entitled to indemnification for the entire amount of Damages. Notwithstanding anything to the contrary contained in this Agreement or this Agreement, in no event shall Seller have any liability (for indemnification or otherwise) under this Section 6.2 for any costs, losses, liabilities, obligations, damages, lawsuits, claims, demands, and expenses, which in the aggregate exceeds fifty percent (50%) of the purchase price paid by Buyer to Seller (the “Cap Amount”) under this Agreement, provided however, that the Cap Amount shall not apply to breach of any Representations and Warranties set out in the Designated Sectionssuch Fleet Indemnitees.
Appears in 1 contract
Sources: Loan and Security Agreement (Tropical Sportswear International Corp)