Buyer’s Indemnity. Buyer shall keep the Property free from all liens by reason of the inspections, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, and hold Seller, Seller's affiliates and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and assigns (collectively, the "Seller Released Parties") harmless from and against any and all claims, demands, liabilities, judgments, penalties, losses, costs, damages and expenses (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damages) with respect to any breach of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to or in connection with the Property or entries by Buyer or Buyer's Representatives in, on or about the Property; provided, however, that Buyer shall not be responsible for any losses or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Seller.
Appears in 2 contracts
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Steadfast Apartment REIT, Inc.), Purchase and Sale Agreement and Joint Escrow Instructions (Steadfast Apartment REIT, Inc.)
Buyer’s Indemnity. In addition to any other applicable rights under this Agreement, Buyer shall keep the Property free from all liens by reason of the inspections, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except agrees to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, and hold SellerSeller and its officers, Seller's affiliates and shareholders and each of their directors, partners, members, managers, directors, officers, trustees, beneficiariesagents, employees, representatives, agentsaffiliates, attorneys, lenders, related and affiliated entities, heirs, successors and assigns (collectively, the "Seller Released “Seller’s Indemnified Parties"”) harmless from and against any and all liabilities, liens, claims, demands, liabilities, judgments, penalties, lossesdamages, costs, damages expenses, suits or judgments paid or incurred by any of Seller’s Indemnified Parties and all expenses (including related thereto, including, without limitation, court costs and reasonable attorneys' and experts' ’ fees and costs but expressly excluding punitive, special, consequential arising out of or incidental damagesin any way connected or related to (i) any breach or nonperformance by Buyer of any provision or covenant contained in this Agreement or in any certificate or other instrument or document furnished (or to be furnished) by Buyer with respect to the transactions contemplated hereunder, (ii) any liability arising because of a breach of Section 4.6.1 above lease, breach of contract matter or otherwise relating tort claim related to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to or in connection with the Property which occurred or entries is alleged to have occurred after Closing and which is not due to actions taken by Seller, or (iii) the breach of any representation, warranty or covenant of Buyer or Buyer's Representatives incontained in this Agreement, on or about subject to the Property; providedfloor and cap set forth in Section 4.3. The indemnities set forth in this Section shall survive Closing for a period of six (6) months. Provided, however, that Buyer the indemnities set forth in this Section shall not be responsible for any losses or expenses resulting from the discovery of adverse information relating to the Property, except apply to the extent Buyer exacerbates a pre-existing condition at of any item that (A) specifically remains the Property. Notwithstanding any provision obligation of Seller after the Closing pursuant to the contrary in terms and conditions of this Agreement, ; or (B) is the indemnity obligations obligation of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) Seller after the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior pursuant to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law terms and subject to de minimis differences from the immediately prior condition conditions of the Property reasonably approved by SellerLeaseback Leases.
Appears in 2 contracts
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.), Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Buyer’s Indemnity. Buyer shall keep the Property free hereby agrees to indemnify and hold Seller harmless from and against, and agrees to defend promptly Seller from and to reimburse Seller for, any and all liens by reason Losses that Seller may at any time suffer or incur, or become subject to, as a result of or in connection with (i) any breach or inaccuracy of any of the inspections, tests, investigations, studies representations and examinations performed warranties made by Buyer in or pursuant to this Agreement, (ii) any failure by Buyer to perform any of its covenants and Buyer's Representativesobligations set forth in this Agreement or in any agreement, document or instrument delivered pursuant hereto, and (iii) all liabilities of the Companies (whether arising before or after the Effective Time of Closing) except to the extent arising out of the gross negligence such liabilities or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory obligations are indemnifiable by Seller pursuant to Seller), protect, and hold Seller, Seller's affiliates and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and assigns (collectively, the "Seller Released Parties") harmless from and against any and all claims, demands, liabilities, judgments, penalties, losses, costs, damages and expenses (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damages) with respect to any breach of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to or in connection with the Property or entries by Buyer or Buyer's Representatives in, on or about the Property8.1 hereof; provided, however, that Buyer shall not be responsible for any losses or expenses resulting from required to indemnify Seller pursuant to Section 8.2((a))(i) hereof in respect of the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement representations and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim warranties made by a third party unaffiliated with Seller Buyer unless such right is asserted (whether or any Seller Released Parties of which Seller (or not such Seller Released PartyLosses have actually been incurred) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer within 18 months after the Closing Date. Notwithstanding the foregoing, Buyer shall not be required to indemnify Seller pursuant to Section 8.2((a))(i) in respect of the representations and warranties made by Buyer unless and until the amount of all Losses for which such indemnification is sought hereunder first exceeds one percent (1%) of the Final Purchase Price, in which event all Losses in excess of such amount shall be subject to indemnification. Buyer’s aggregate obligation pursuant to Section 8.2((a))(i) shall in no event exceed an amount equal to fifty percent (50%) of the Final Purchase Price. The amounts for which Buyer shall be liable under Section 8.2((a)) hereof shall be net of any insurance proceeds received by Seller in connection with reasonable detail the facts giving rise to the right of indemnification (less any retroactive insurance premiums or other premium increase, where such increase results directly from filing the insurance claim related thereto). In the event a specified claim against Seller arises that is covered by the indemnity provisions of Section 8.2((a)) of this Agreement, notice shall be promptly given by Seller to Buyer. Provided that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until admits in writing to Seller that such claim is resolvedcovered by the indemnity provisions of Section 8.2((a)) hereof, Buyer shall have the right to contest and defend by all appropriate legal proceedings such claim and to control all settlements (unless Seller agrees to assume the cost of settlement and to forgo such indemnity) and to select lead counsel to defend any and all such claims at the sole cost and expense of Buyer; provided, however, that Buyer may not effect any settlement that could result in any cost, expense or liability to Seller unless Seller consents in writing to such settlement and Buyer agrees to indemnify Seller therefor. Without limiting Seller may select counsel to participate in any defense, in which event such counsel shall be at the foregoing indemnitysole cost and expense of Seller. In connection with any such claim, if there is action or proceeding, the parties shall cooperate with each other and provide each other with access to relevant books and records in their possession. Except as provided in Sections 8.3, 8.4, 8.5, 8.8 and 8.11 hereof, this Section 8.2 shall be the sole remedy of Seller against Buyer after Closing for any damage to claim arising in connection with the Property caused transactions contemplated herein, except for claims of fraud by Buyer's and/or . Buyer's Representatives' entry in or on ’s representations and warranties made herein shall survive the PropertyClosing, Buyer shall, promptly following the request of Seller, repair such damage, but only to the extent permitted by law and subject for such time as is necessary to de minimis differences from the immediately prior condition of the Property reasonably approved by Sellerenable Seller to enforce its rights to indemnification under this Section.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Chesapeake Corp /Va/)
Buyer’s Indemnity. Buyer shall keep the Property free from all liens by reason of the inspections, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except hereby agrees to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, indemnify and hold Seller, Seller's affiliates its Affiliates and shareholders and each of their partnersrespective officers, directors, managers, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related employees and affiliated entities, heirs, successors and assigns agents (collectively, the "Seller Released Indemnified Parties") harmless from and against against, and agrees to defend promptly the Seller Indemnified Parties from and to reimburse the Seller Indemnified Parties for, any and all claimsLosses that the Seller Indemnified Parties may at any time suffer or incur, demandsor become subject to, liabilities, judgments, penalties, losses, costs, damages and expenses (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damages) with respect to any breach as a result of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to or in connection with (i) any breach or inaccuracy of any of the Property representations and warranties made by Buyer in or entries pursuant to this Agreement (it being understood that (i) the "except for" clause in Section 7.4 hereof and (ii) any waiver by Seller of the condition to Closing set forth in Section 7.4 hereof shall not, in either case, in any way be deemed a waiver of Seller’s right to indemnification pursuant to this Section 8.2(a)(i) for a breach or inaccuracy of a representation or warranty made by Buyer), (ii) any failure by Buyer to perform any of its covenants and obligations set forth in this Agreement or in any agreement, document or instrument delivered pursuant hereto (it being understood that (i) the "material" qualifiers in Section 7.1 hereof and (ii) any waiver by Seller of the condition to Closing set forth in Section 7.1 hereof shall not, in either case, in any way be deemed a waiver of Seller’s right to indemnification pursuant to this Section 8.2(a)(ii) for the failure by Buyer to perform any of its covenants or obligations set forth herein), and (iii) claims by third parties against the Seller Indemnified Parties relating to the operation and ownership by Buyer of the Assets and the use of the items of real or personal property held by Seller pursuant to the Contracts, the performance by Buyer under the Contracts, the Assumed Liabilities and the conduct of Buyer’s business from and after the Effective Time of Closing (including, but not limited to, any product warranty claims relating to products designed, manufactured, constructed, distributed, sold, leased, supported or installed by Buyer or Buyer's Representatives inservices performed by Buyer after the Effective Time of Closing), on or about the Property; provided, however, that Buyer shall not be responsible for any losses or expenses resulting from required to indemnify the discovery Seller Indemnified Parties pursuant to Section 8.2((a))(i) hereof in respect of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement representations and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim warranties made by a third party unaffiliated with Buyer unless such right to indemnification is asserted by the Seller Indemnified Parties (whether or any Seller Released Parties of which Seller (or not such Seller Released PartyLosses have actually been incurred) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Seller.time periods:
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Chesapeake Corp /Va/)
Buyer’s Indemnity. (a) The Buyer shall keep hereby indemnifies and holds the Property free from all liens by reason of the inspectionsSellers and their officers, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, and hold Seller, Seller's affiliates directors and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and permitted assigns (collectively, the "Seller Released Indemnified Parties") harmless from and against against, any and all claimsLosses that the Seller Indemnified Parties may at any time suffer or incur, demandsor become subject to, liabilitiesas a result of or in connection with: (i) any breach or inaccuracy of any of the representations and warranties made by the Buyer in or pursuant to this Agreement; (ii) any failure by the Buyer to carry out, judgmentsperform, penaltiessatisfy and discharge any of its covenants, lossesagreements, costsundertakings, damages liabilities or obligations under this Agreement or under any of the documents and instruments delivered by the Buyer pursuant to this Agreement; (iii) the fees and expenses described in Schedule 4.07; and (including reasonable attorneys' iv) the operation and experts' fees ownership of the Xxxx Group entities by the Buyer from and costs but expressly excluding punitive, special, consequential or incidental damages) after the Effective Time of Closing other than with respect to any breach of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to or in connection with the Property or entries by Buyer or Buyer's Representatives in, on or about the PropertyRetained Liabilities; provided, however, that the Buyer shall not be responsible for any losses required to indemnify and hold the Seller Indemnified Parties harmless pursuant to Section 8.03(a)(i) or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) unless such right is asserted (whether or not the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (aLosses have actually been incurred) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to the Buyer within 18 months of the Effective Time of Closing describing with reasonable detail of a specified claim that Buyer is responsible for hereunder within specificity the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage facts giving rise to the Property caused by Buyer's and/or Buyer's Representatives' entry in asserted right; provided, further, that the Buyer shall not be required to indemnify the Seller Indemnified Parties under Section 8.03(a)(i) or on (ii) unless and until the Propertyamount of all Losses for which indemnification is sought with respect thereto, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition together with all Losses for which indemnification is sought pursuant Section 7.03 of the Property reasonably approved by SellerXxxxxxx Purchase Agreement, shall exceed $500,000, and, thereafter, the Buyer shall indemnify the Seller Indemnified Parties for all additional Losses with respect thereto up to but not in excess of, when added to all Losses for which indemnification is sought pursuant to Section 7.03 of the Xxxxxxx Purchase Agreement, $20,000,000.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cadmus Communications Corp/New)
Buyer’s Indemnity. Buyer shall keep the Property free from all liens by reason of the inspections, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except hereby agrees to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, defend and hold Sellerharmless Seller and its officers, Seller's affiliates and shareholders and each of their partnersdirectors, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and assigns (collectively, the "Seller Released Parties") tenants harmless from and against any and all third party claims, demands, obligations, losses, liabilities, judgmentsdamages, recoveries and deficiencies (including interest, penalties and reasonable attorneys’ fees, costs and expenses) which any of them may suffer as a result of: (i) any breach of or inaccuracy in the representations and warranties, or breach, non-fulfillment or default in the performance of any of the conditions, covenants and agreements, of Buyer contained in this Agreement or in any certificate or document delivered by Buyer pursuant to any of the provisions of this Agreement, unless Buyer cures such matter in the manner provided in Section 8.22 herein, (ii) the failure to discharge any federal, state, or local tax liability, or to pay monetary liens or other assessments, recoupments, claims, fines, penalties, losses, costs, damages and expenses (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damages) other amounts or liabilities accrued or payable with respect to any breach activities of Section 4.6.1 above Buyer following the Closing Date, or otherwise relating to (iii) the existence against the Real Property of any mechanic’s or materialmen’s claims arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by actions of Buyer or Buyer's Representatives relating to or in connection with the Property or entries by Buyer or Buyer's Representatives in, on or about the Property; provided, however, that Buyer shall not be responsible for any losses or expenses resulting from the discovery of adverse information relating ’s Consultants prior to the PropertyClosing, except to or (iv) any obligation which is expressly the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations responsibility of Buyer under this Agreement shall survive the earlier to occur of Agreement, or (iv) any termination of this Agreement and (ii) amounts required to cure citation violations issued by any state or federal health or human services authority on the Facilities relating to any period following the Closing and shall Date (but only to the extent such matters are not merge into primarily attributable to the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim activities of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month periodClosing Date), or (bvi) one (1) year with respect any claim by any employee of Buyer relating to any claim period of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly employment following the request of Seller, repair such damage, Closing Date (but only to the extent permitted by law and subject such matters are not primarily attributable to de minimis differences from the immediately activities of Seller prior condition to the Closing Date), or (vii) the existence against the Real Property of any mechanic’s or materialmen’s claims (but only to the extent such matters are not primarily attributable to the activities of Seller prior to the Closing Date), or (viii) any other cost, claim or liability arising out of or relating to events or Buyer’s ownership, operation or use of the Property reasonably approved Facilities following the Closing Date. Any amount due under the aforesaid indemnity will be due and payable by Sellersuch Buyer within thirty (30) days after demand therefor. Buyer will have the right to contest any such claims, liabilities or obligations as provided herein or any other cost, claim or liability arising out of or relating to events or Buyer’s ownership, operation or use of the Facilities after the Closing Date.
Appears in 1 contract
Buyer’s Indemnity. Buyer shall keep the Property free from all liens by reason (a) Upon closing of the inspectionstransactions contemplated herein, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except hereby agrees to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, indemnify and hold Seller, Seller's affiliates Seller and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirsits Affiliates, successors and assigns and their respective representatives (collectively, the "Seller Released PartiesSeller's Indemnitees") harmless from and against against, and agree to defend promptly Seller's Indemnitees from and reimburse Seller's Indemnitees for, any and all claimsLosses that Seller's Indemnitees may at any time suffer or incur, demandsor become subject to, liabilities, judgments, penalties, losses, costs, damages and expenses as a result of or in connection with: (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damagesi) with respect to any breach or inaccuracy of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests of the representations and warranties made by Buyer in or Buyer's Representatives pursuant to this Agreement or any instrument or document executed by Buyer in connection with or as a result of this Agreement; (ii) the Assumed Liabilities; (iii) any claims relating to Seller's collective bargaining agreements listed on Schedule 3.13(c) arising out of the transactions contemplated hereby or in connection with Buyer's failure to assume any collective bargaining agreement listed on Schedule 3.13(c) on or after the Property Closing Date, including without limitation any severance obligations under those agreements and any litigation, arbitration or entries other proceedings instituted by the union or union employees in connection with or as a result of this Agreement or the transactions contemplated hereby; (iv) any claims relating to Buyer's failure to recognize and bargain with any Seller union; (v) the non-fulfillment of any covenant, undertaking, agreement or other obligation of Seller under this Agreement and (vi) claims by third parties against Seller relating to the operation and ownership by Buyer or Buyer's Representatives inof the Purchased Assets, on or about the Propertyperformance by Buyer under the Contracts and the Assumed Leases and the conduct of the Buyer in connection with the Healthcare Communications Business from and after the Closing Date, other than with respect to the Retained Liabilities; provided, however, that Buyer that, Seller's Indemnitees shall not have no right to be responsible for any losses indemnified, held harmless from, defended or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer reimbursed under this Agreement shall survive the earlier to occur of (iSection 8.2(a) any termination of this Agreement hereof unless such Claims have actually been incurred and (ii) asserted on or before one year after the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by SellerDate.
Appears in 1 contract
Samples: Asset Purchase Agreement (Elot Inc)
Buyer’s Indemnity. (a) The Buyer shall keep the Property free from all liens by reason of the inspections, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except agrees to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, indemnify and hold Seller, Seller's affiliates the Seller and shareholders and each of their partners, members, managersits Affiliates, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related counsel and affiliated entities, heirs, representatives and the Stockholder and all of his successors and assigns (collectively, the "“Seller Released Parties"Indemnitees”) harmless from and against against, and agree to defend promptly the Seller Indemnitees from and reimburse the Seller Indemnitees for, any and all claimsLosses that the Seller Indemnitees may at any time suffer or incur, demandsor become subject to, liabilities, judgments, penalties, losses, costs, damages and expenses (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damages) with respect to any breach as a result of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to or in connection with with: (i) any breach or inaccuracy of any of the Property representations and warranties made by the Buyer in or entries pursuant to this Agreement or in any certificate or other document delivered pursuant to this Agreement; (ii) any failure by the Buyer to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or Buyer's Representatives in, on obligations under this Agreement or about under any of the Propertydocuments and instruments delivered by the Buyer pursuant to this Agreement; or (ii) the Assumed Liabilities; provided, however, that Buyer the Seller Indemnitees shall have the right to be indemnified, held harmless from, defended or reimbursed under this Section 9.2 (a) in respect of a claim under Section 9.2(a)(i), other than a claim based on a breach of the representations and warranties set forth in Sections 5.1, 5.2 and 5.3 (as to which no time limit shall apply) only if such right is asserted (whether or not be responsible for any losses or expenses resulting from such Losses have actually been incurred) within eighteen (18) months of the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the PropertyClosing Date. Notwithstanding any Any provision herein to the contrary in this Agreementnotwithstanding, no claim may be made under Section 5.6 with regard to a breach of a representation or warranty after the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closingperiod, for a period of (a) nine (9) months with respect if any, applicable to any claim of Seller underlying representation or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Sellerwarranty.
Appears in 1 contract
Buyer’s Indemnity. Buyer shall keep the Property free from all liens by reason Upon closing of the inspectionstransactions contemplated herein, tests, investigations, studies and examinations performed by Buyer Parent and Buyer's Representatives, except jointly and severally hereby agree to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, indemnify and hold Seller, Seller's affiliates Seller and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirsits Affiliates, successors and assigns and their respective representatives (collectively, the "Seller Released PartiesSeller's Indemnitees") harmless from and against against, and agree to defend promptly Seller's Indemnitees from and reimburse Seller's Indemnitees for, any and all claimsLosses that Seller's Indemnitees may at any time suffer or incur, demandsor become subject to, liabilities, judgments, penalties, losses, costs, damages as a result of or in connection with: (i) any breach or inaccuracy of any of the representations and expenses warranties made by Parent or Buyer in or pursuant to this Agreement or any instrument or document executed by Parent or Buyer in connection with or as a result of this Agreement; (including reasonable attorneys' and experts' ii) the Assumed Liabilities; (iii) any breach by Parent or Buyer of any covenant or obligation of Parent or Buyer in this Agreement; (iv) any claim by any Person for brokerage or finder's fees and costs but expressly excluding punitive, special, consequential or incidental damagescommissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with Parent or Buyer (or any Person acting on their behalf) in connection with any of the transactions contemplated by this Agreement; (v) any liability in respect of any Taxes relating to the Purchased Assets attributable to any breach of Section 4.6.1 above period beginning on or otherwise after the Closing Date; and (vi) claims by third parties against Seller relating to operation, ownership and performance by, Buyer of the Purchased Assets, and the conduct of Parent or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to or in connection with the Property or entries by Buyer or Buyer's Representatives in, on or about the Property; provided, however, that Buyer shall not be responsible for any losses or expenses resulting Computer Telephony Business from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) after the Closing and shall not merge into the Deed and any Date, other documents or instruments delivered at Closing, for a period of (a) nine (9) months than with respect to any claim the Retained Liabilities; PROVIDED, HOWEVER, that, except in the case of the Indemnified Litigation, Seller's Indemnitees shall have no right to be indemnified, held harmless from, defended or reimbursed under SECTION 9.02 hereof unless Seller has notified Parent or any Seller Released Party unrelated to a claim Buyer of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) Claims within one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by SellerClosing Date.
Appears in 1 contract
Buyer’s Indemnity. (a) Buyer shall keep the Property free from all liens by reason of the inspectionshereby indemnifies and holds Parent, tests, investigations, studies Seller and examinations performed by Buyer and Buyer's Representatives, except to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, and hold Seller, Seller's affiliates and shareholders and each of their partners, members, managers, directors, respective officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related directors and affiliated entities, heirs, successors and assigns Affiliates (collectively, the "Seller Released Indemnified Parties") harmless from and against any and all claimsLosses that Seller Indemnified Parties may at any time suffer or incur, demandsor become subject to, liabilities, judgments, penalties, losses, costs, damages and expenses as a result of or in connection with: (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damagesi) with respect to any breach or inaccuracy of Section 4.6.1 above (A) any of the representations or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests warranties made by Buyer or Buyer's Representatives relating to or in connection with Sections 4.1, 4.2 and 4.6 and (B) any of the Property or entries other representations and warranties made by Buyer in this Agreement or any other agreement or instrument delivered by Buyer pursuant hereto; (ii) any failure by Buyer to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the agreements and instruments delivered by Buyer pursuant to this Agreement; (iii) the Transferred Assets, the Assumed Liabilities or the operation of the Business after the Closing; (iv) Buyer's Representatives in’s use of Seller’s existing signs and pre-printed materials, including those that display or include the names "Elan", "Elan Diagnostics" or any variations thereof, as permitted by Section 8.9(b); and (v) the use by Buyer of any of the financial statements contemplated by Section 8.8(a) or 8.8(b) (except to the extent any such Losses result from fraud on the part of the Seller Indemnified Parties or about any breach or inaccuracy of any of the Propertyrepresentations, warranties, covenants or agreements made by Parent or Seller in this Agreement or any other agreement or instrument delivered by Parent or Seller pursuant hereto); provided, however, that Seller Indemnified Parties shall have no right to be indemnified and held harmless under Section 8.2(a)(i) unless such right is asserted (whether or not such Losses have actually been incurred) on or before 18 months after the Closing Date except with respect to Sections 4.1, 4.2 and 4.6 and for which there is no time limitation for asserting such right. Notwithstanding anything to the contrary contained in this Agreement, Buyer shall not be responsible have no liability under this Section 8.2 or any other provision of this Agreement for (i) any losses or expenses resulting from the discovery of adverse information relating Losses to the Propertyextent that such Losses arise out of or result from actions or omissions of Seller Indemnified Parties after the Closing and (ii) any special, punitive or exemplary damages (except to the extent Buyer exacerbates that a pre-existing condition at the PropertySeller Indemnified Party is required to pay such damages to a third party). Notwithstanding Parent and Seller shall take all commercially reasonable steps to mitigate any provision indemnifiable Losses upon and after becoming aware of any circumstance or event which could reasonably be expected to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect give rise to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Sellerindemnifiable Losses.
Appears in 1 contract
Samples: Asset Purchase Agreement (Novitron International Inc)
Buyer’s Indemnity. (a) Buyer shall keep the Property free from all liens by reason of the inspections, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except hereby agrees to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, indemnify and hold Seller, Seller's affiliates and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirsits affiliates, successors and assigns and their respective representatives (collectively, the "Seller Released PartiesSeller's Indemnitees") harmless from and against against, and agrees to defend promptly Seller's Indemnitees from and reimburse Seller's Indemnitees for, any and all claimsLosses that Seller's Indemnitees may at any time suffer or incur, demandsor become subject to, liabilities, judgments, penalties, losses, costs, damages and expenses as a result of or in connection with: (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damagesi) with respect to any breach or inaccuracy of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests of the representations and warranties made by Buyer in or Buyer's Representatives pursuant to this Agreement; (ii) any failure by Buyer to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations under this Agreement other than the Escrow Agreement, Note, the Employment Agreement executed by Xxxxxxx Xxxxxx in substantially the form of Exhibit F hereto and the Employment Agreements executed by each of the Phantom Shareholders in substantially the form of Exhibit G hereto, or under any of the documents and materials delivered by Buyer pursuant to this Agreement; and (iii) claims by third parties against Seller relating to or in connection with the Property or entries operation and ownership by Buyer or Buyer's Representatives inof the Purchased Assets, on or about the Propertyperformance by Buyer under the Assumed Contracts and the conduct of the Business by Buyer from and after the Effective Time of Closing; provided, however, that Seller's Indemnitees shall have no right to be indemnified, held harmless from, defended or reimbursed under Section 9.2(a) hereof unless such right is asserted (whether or not such Losses have actually been incurred) within 18 months of the Closing Date; and provided, further, that Buyer shall not be responsible required to indemnify Seller's Indemnitees under Section 9.2(a)(i) hereof in respect of such representations and warranties unless and until the amount of all Losses for any losses or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months which indemnification is sought with respect thereto shall exceed $200,000, at which point Buyer will be obligated to any claim indemnify Seller's Indemnitees for all additional Losses in excess of Seller or any Seller Released Party unrelated $200,000. In no event shall Buyer be liable to a claim Seller's Indemnitees pursuant to this Section 9.2(a) in an amount in excess of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Seller$7,250,000.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cadmus Communications Corp/New)
Buyer’s Indemnity. Buyer shall keep the Property free from all liens by reason of the inspections, tests, investigations, studies and examinations performed by Buyer and Buyer's ’s Representatives, except to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, and hold Seller, Seller's ’s affiliates and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and assigns (collectively, the "“Seller Released Parties"”) harmless from and against any and all claims, demands, liabilities, judgments, penalties, losses, costs, damages and expenses (including reasonable attorneys' ’ and experts' ’ fees and costs but expressly excluding punitive, special, consequential or incidental damages) with respect to any breach of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's ’s Representatives relating to or in connection with the Property or entries by Buyer or Buyer's ’s Representatives in, on or about the Property; provided, however, that Buyer shall not be responsible for any losses or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's ’s and/or Buyer's ’s Representatives' ’ entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Steadfast Apartment REIT III, Inc.)
Buyer’s Indemnity. (a) The Buyer shall keep hereby indemnifies and holds the Property free from all liens by reason of the inspectionsSellers and their officers, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, and hold Seller, Seller's affiliates directors and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and permitted assigns (collectively, the "Seller Released Indemnified Parties") harmless from and against against, any and all claimsLosses that the Seller Indemnified Parties may at any time suffer or incur, demandsor become subject to, liabilitiesas a result of or in connection with: (i) any breach or inaccuracy of any of the representations and warranties made by the Buyer in or pursuant to this Agreement; (ii) any failure by the Buyer to carry out, judgmentsperform, penaltiessatisfy and discharge any of its covenants, lossesagreements, costsundertakings, damages liabilities or obligations under this Agreement or under any of the documents and instruments delivered by the Buyer pursuant to this Agreement; (iii) the fees and expenses described in Schedule 4.07; and (including reasonable attorneys' iv) the operation and experts' fees ownership of the Xxxx Group entities by the Buyer from and costs but expressly excluding punitive, special, consequential or incidental damages) after the Effective Time of Closing other than with respect to any breach of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to or in connection with the Property or entries by Buyer or Buyer's Representatives in, on or about the PropertyRetained Liabilities; provided, however, that the -------- ------- Buyer shall not be responsible for any losses required to indemnify and hold the Seller Indemnified Parties harmless pursuant to Section 8.03(a)(i) or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) unless such right is asserted -------------------------- (whether or not the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (aLosses have actually been incurred) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to the Buyer within 18 months of the Effective Time of Closing describing with reasonable detail of a specified claim that Buyer is responsible for hereunder within specificity the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage facts giving rise to the Property caused by Buyer's and/or Buyer's Representatives' entry in asserted right; provided, further, that -------- ------- the Buyer shall not be required to indemnify the Seller Indemnified Parties under Section 8.03(a)(i) or on (ii) unless and until the Propertyamount of all Losses for -------------------------- which indemnification is sought with respect thereto, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition together with all Losses for which indemnification is sought pursuant Section 7.03 of the Property reasonably approved by SellerXxxxxxx ------------ Purchase Agreement, shall exceed $500,000, and, thereafter, the Buyer shall indemnify the Seller Indemnified Parties for all additional Losses with respect thereto up to but not in excess of, when added to all Losses for which indemnification is sought pursuant to Section 7.03 of the Xxxxxxx Purchase ------------ Agreement, $20,000,000.
Appears in 1 contract
Buyer’s Indemnity. Buyer shall keep the Property free from all liens by reason of the inspections, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to and hold harmless Seller), protectits assigns, and hold Seller, Seller's affiliates and shareholders and each of their partners, members, managersrespective officers, directors, officers, trustees, beneficiariesshareholders, employees, representatives, agents, attorneys, lenders, related agents and affiliated entities, heirs, successors and assigns representatives (collectively, the collectively "Seller Released PartiesIndemnitees") harmless from and against any and all damages, claims, demands, liabilities, judgmentslosses and other expenses, penalties, losses, including without limitation reasonable attorneys' fees and costs, damages whether or not a lawsuit or other proceeding is filed, that arise out of: (i) Buyer's operations of the Business or use of the Assets following the Closing Date, but only to the extent any such damages, claims, liabilities, losses and other expenses do not arise from or are not otherwise related to events taking place prior to the Closing or are not otherwise indemnified by Seller in Section 8.1 above; (ii) a material breach of any obligation, representation, warranty, covenant or agreement made by Buyer in this Agreement, or any material representation or warranty by Buyer contained herein, in any document furnished or required to be furnished pursuant to this Agreement by Buyer to Seller or any of its representatives, or in any documents furnished to Seller in connection with the Closing hereunder being false; and (iii) cost and expenses (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damagesfees) with respect to any breach of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made incurred by Buyer or Buyer's Representatives relating to or Seller in connection with any action, suit, proceeding, demand, assessment or judgment incident to any of the Property or entries by Buyer or Buyer's Representatives in, on or about the Property; provided, however, that foregoing. Buyer shall not be responsible for any losses have exclusive control over the settlement or expenses resulting from the discovery defense of adverse information relating to the Propertysuch claims or actions, except to that Seller Indemnitees may appear in the extent Buyer exacerbates a pre-existing condition action, at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnitytheir own expense, if there is any damage to the Property caused such parties reasonably determine that an actual conflict of interest would exist by Buyer's representation of such Seller Indemnitees and Buyer in such action. In the event Buyer fails to promptly indemnify and defend such claims and/or Buyer's Representativespay Seller Indemnitees' entry expenses, as provided above, each of the Seller Indemnitees shall have the right to defend itself, and in or on the Propertythat case, Buyer shallshall reimburse such Seller Indemnitees for all of their attorneys' fees, promptly following the request costs and damages incurred in settling or defending such claims within thirty (30) days of Seller, repair each of such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Sellerparties' written requests.
Appears in 1 contract
Buyer’s Indemnity. For a period of eighteen (18) months three s from the date hereof or the applicable statute of limitations period for the matter, whichever is longer, [except that such period shall be unlimited where any Loss or Expense results from the Assumed Liabilities or from Buyer's fraud or intentional misconduct or intentional concealment for which indemnification to Seller and Shareholder under this Section 8(5)(b) is available], Buyer shall keep the Property free from all liens by reason of the inspections, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, indemnify and hold SellerSeller and the Shareholder, Seller's affiliates and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirsaffiliates, successors and assigns (collectively, the "Seller Released PartiesIndemnified Persons") harmless from and against will reimburse the Seller Indemnified Persons for any and all claimsLoss and Expense resulting from (i) Buyer's ownership of the Assets and the Business and operation of the Business after the date hereof, demandsincluding, liabilitiesbut not limited to, judgments, penalties, losses, costs, damages liability and expenses environmental claims resulting therefrom; (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damagesii) with respect to any breach of Section 4.6.1 above or otherwise relating to or arising in Assumed Liability; (iii) any manner whatsoever from any studies, evaluations, inspections, investigations or tests misrepresentation made by Buyer herein; (iv) the breach of any of the representations or Buyer's Representatives relating to or in connection with the Property or entries warranties made by Buyer or Buyer's Representatives in, on or about the Property; provided, however, that Buyer shall not be responsible for any losses or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, ; (iv) the indemnity obligations breach or default in performance by Buyer of any of the covenants or agreements which Buyer is to perform under this Agreement shall survive Agreement; (v) the earlier operations, business, products or services of Solomat Air conducted by Zellweger U.K. (as hereinafter defined) prior to occur of May 31, 2001, which operations, business, products and services were acquired by Seller from Zellweger U.K. in the Acquisition (ias hereinafter defined); and (vi) any claim or liability under the Workers Adjustment and Retraining Act arising from Buyer's layoff or termination of this Agreement and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim employees of Seller hired by Buyer on or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Sellerdate hereof.
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Buyer’s Indemnity. From and after the Closing, Buyer shall keep the Property free from all liens by reason of the inspections, tests, investigations, studies indemnify and examinations performed by Buyer and Buyer's Representatives, except to the extent arising out of the gross negligence or willful misconduct of hold harmless Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoingits Affiliates, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, and hold Seller, Seller's affiliates and shareholders and each of their partners, members, managersits respective officers, directors, officers, trustees, beneficiariesshareholders, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and permitted assigns (collectively, the "Seller Released Indemnified Parties") harmless from and against any claim, liability, loss, cost, damage or expense (including, without limitation, court costs and all claims, demands, liabilities, judgments, penalties, losses, costs, damages and expenses (including reasonable attorneys' and experts' fees and costs but expressly excluding punitiveexpenses) (a "Claim") arising out of or resulting from (a) the breach of, specialor the failure to perform or satisfy any of, consequential or incidental damages) with respect to any breach of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studiesthe representations, evaluations, inspections, investigations or tests warranties and covenants made by Buyer in this Agreement or Buyer's Representatives relating to or in any certificate delivered in connection with this Agreement pursuant to Article V, (b) the Property Specified Liabilities, (c) any act, omission, occurrence, event, condition or entries circumstance first occurring at any time after the Closing Date and involving or related to the Specified Assets, the Specified Contracts or the Business, or (d) without limitation, any (i) violation or claimed violation of any Environmental Laws or Environmental Permits alleged by Buyer or any party to the extent related in any way to Buyer's Representatives inownership, on use or about operation of the PropertySpecified Assets, or conditions of the Specified Assets resulting therefrom after the Closing Date; (ii) Environmental Claim to the extent related in any way to the ownership, use, operation, or conditions of the Specified Assets after the Closing Date; or (iii) cleanup or remediation requirement or liability respecting a Release or threatened Release of any Hazardous Substances to the extent related to the Specified Assets and occurring after the Closing Date; provided, however, that Buyer shall not be responsible for any losses or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreementhowever that, the indemnity obligations right of Buyer a Seller Indemnified Party to be indemnified for a Direct Claim under this Agreement shall survive the earlier Section 11.2(d) is limited to occur of (i) any termination of this Agreement and (ii) the Closing and shall not merge into the Deed and any other documents circumstances or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of events where Seller or any Seller Released Indemnified Party unrelated is required to a claim undertake the activities giving rise to such Direct Claim in order to comply with an Environmental Law or, in Seller's reasonable judgment, to respond to an Environmental Claim; and Buyer shall reimburse Seller Indemnified Parties for any legal or other expenses reasonably incurred by Seller Indemnified Parties in connection with investigating or defending any such Claim which is the Claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or as such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Sellerexpenses are incurred.
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Buyer’s Indemnity. Buyer shall keep the Property free hereby indemnifies Seller against and agrees to hold it harmless from any and all liens damage, loss, liability and expense (including, without limitation, reasonable expenses of investigation, attorney's fees and expenses in connection with any action, suit or proceeding brought against Seller) demanded, claimed or threatened in writing against Seller or incurred or suffered by reason Seller arising out of (i) ownership or operation of the inspectionsBranches, teststhe Accounts or the business or properties of the Branches after Closing (except as to such damage, investigationsliability, studies loss or expense resulting from actions taken by Buyer at the written direction of Seller), (ii) all Liabilities (which term excludes Non-Assumed Liabilities) (iii) any breach by Buyer of its covenants included in Section 6.5, and examinations (iv) any misrepresentation or breach of warranty, covenant or agreement made, contained in or to be performed by Buyer and pursuant to this Agreement. Any direct claim by Seller against Buyer's Representatives, except as distinguished from a claim against Seller by a third party, shall be settled by arbitration pursuant to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, and hold Seller, Seller's affiliates and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and assigns (collectively, the "Seller Released Parties") harmless from and against any and all claims, demands, liabilities, judgments, penalties, losses, costs, damages and expenses (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damages) with respect to any breach of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to or in connection with the Property or entries by Buyer or Buyer's Representatives in, on or about the Property; provided, however, that 11.4. Buyer shall not be responsible liable under this Section 11.3 for any losses or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of settlement effected by Seller without its consent (i) any termination of this Agreement and (ii) the Closing and which consent shall not merge into the Deed and be unreasonably withheld) of any other documents claim, litigation or instruments delivered at Closing, for a period of (a) nine (9) months proceeding with respect to which indemnity may be sought hereunder. Seller agrees to give prompt notice to Buyer of the assertion of any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Partiesclaim, or the commencement of any claim of Seller suit, action or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year proceeding with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to indemnity may be sought hereunder. Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable periodmay, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following and at the request of SellerSeller shall, repair participate in and control the defense of any such damagesuit, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Seller.action or proceeding at its own expense. Section 11.4
Appears in 1 contract
Samples: Branch Purchase and Assumption Agreement (Surety Capital Corp /De/)
Buyer’s Indemnity. (a) Buyer shall keep hereby agrees to indemnify and hold Seller and its officers, directors, employees and authorized agents and their successors and permitted assigns (each, a “Seller Indemnified Party” and collectively, the Property free from all liens by reason of “Seller Indemnified Parties” and, together with the inspections, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Indemnified Parties, the “Indemnified Parties”) harmless from and against, any and all Losses that the Seller Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with: (i) any contractors, representatives breach or agents inaccuracy of any of the forgoingrepresentations and warranties (disregarding for purposes of this Section 6.3(a) any materiality qualifications or thresholds) made by Buyer in or pursuant to this Agreement and the other Transaction Documents; (ii) any failure by Buyer to carry out, perform, satisfy and shall indemnifydischarge any of its covenants, defend agreements, undertakings, liabilities or obligations under this Agreement or under any of the other Transaction Documents; (iii) any fraud or willful misrepresentation or omission by Buyer; (iv) any events or circumstances occurring or existing with counsel reasonably satisfactory respect to Seller)the ownership, protect, operation and hold Seller, Seller's affiliates maintenance of the Business and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and assigns (collectively, the "Seller Released Parties") harmless from and against any and all claims, demands, liabilities, judgments, penalties, losses, costs, damages and expenses (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damages) Assets subsequent to the Closing Date except with respect to any breach of claims for which Seller is obligated to indemnify the Buyer Indemnified Parties under Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to or in connection with the Property or entries by Buyer or Buyer's Representatives in, on or about the Property6.2; provided, however, that Buyer shall not be responsible for any losses or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of and (iv) any termination action or proceeding initiated by any Seller Indemnified Party to enforce the provisions of this Agreement and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by SellerArticle 6.
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Buyer’s Indemnity. Subject to the occurrence of the Closing, Buyer shall keep the Property free indemnify, protect, defend and hold harmless Sellers and its affiliates, owners, officers, directors, partners, employees and agents from and against all liens Claims (i) relating to Buyer’s breach of a representation, warranty or covenant hereunder, (ii) brought by reason of the inspections, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except a third party against Sellers relating to the extent arising out of the gross negligence or willful misconduct of Sellerownership, Seller’s Related Partiesuse, or any contractorsoperation, representatives or agents maintenance and improvement of any of the forgoingProperties and accruing on or after the Closing Date, including, without limitation, relating to the Ground Leases, the Leases, the Management Agreements, the Master Management Agreement, the Equipment Leases, the Membership Documents, Environmental Laws, the Permitted Exceptions, Licenses and Permits (including Liquor Licenses), and shall indemnifyWater Rights, defend and employees, (with counsel reasonably satisfactory iii) under or arising from the Approved Contracts relating to Sellerthe Properties accruing from and after the Closing Date (but excluding Claims under Approved Contracts that accrue prior to the Closing Date or result from a breach, other than a breach resulting from the failure to obtain any required Consent, of the Approved Contracts by Sellers prior to the Closing), protect(iv) XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XX, and hold Seller, Seller's affiliates and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and assigns (collectively, the "Seller Released Parties"v) harmless brought by a Tenant or Manager accruing from and against after the Closing Date and arising from Buyer’s termination of any and all claimsLease or Management Agreement following Closing (except as provided in Section 6.2(q)), demands, liabilities, judgments, penalties, losses, costs, damages and expenses and/or (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential vi) WARN Act Liability arising or incidental damages) with respect asserted to any breach of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to or arise in connection with the Property or entries Acquisition and a termination of employees by Buyer or Buyer's Representatives in, on or about the Property; provided, however, that Buyer shall not be responsible for any losses or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) after the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by SellerDate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (CNL Lifestyle Properties Inc)
Buyer’s Indemnity. Buyer shall keep the Property free from all liens will indemnify and hold harmless Seller against, and in respect of, claims, losses, expenses, costs, obligations, liabilities, penalties, demands, deficiencies, damages, recoveries, including but not limited to interest and attorney’s fees and costs they may incur by reason of the inspections: (i) Assumed Liabilities; (ii) Buyer’s breach of or failure to perform any of its warranties, testsguarantees, investigationscommitments, studies and examinations performed or covenants in this Agreement: or (iii) by Buyer and reason of any act or omission of Buyer's Representatives, except to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractorsof its successors or assigns, representatives after the First Closing Date or agents Second Closing Date, as applicable, that constitutes a breach or default under, or a failure to perform, any obligation, duty, or liability of Buyer under any loan agreement, lease, contract, order, or other agreement to which it is a Party or by which it is bound at the First Closing Date or Second Closing Date, as applicable, which Buyer expressly assumes under this Agreement as of the forgoingsuch First Closing Date or Second Closing Date, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, as applicable. Buyer will further indemnify and hold Seller, Seller's affiliates and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and assigns (collectively, the "Seller Released Parties") harmless from and against any and all claimsconduct, demands, liabilities, judgments, penalties, losses, costs, damages and expenses (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential events or incidental damages) occurrences in connection with respect or related to any breach of Section 4.6.1 above the First Closing Assets arising on or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests made by Buyer or Buyer's Representatives relating to after the First Closing Date or in connection with or related to the Property or entries by Buyer or Buyer's Representatives in, Second Closing Assets arising on or about after the PropertySecond Closing Date. The Parties will promptly notify each other of the existence of any claim, demand, or other matter to which a Party’s indemnification obligations would apply and will give him a reasonable opportunity to defend the same at his own expense and with counsel of his own selection; providedprovided that the Party being indemnified will at all times also have the right to participate fully in the defense at his own expense. If the indemnifying Party, howeverwithin a reasonable time after the notice required by this paragraph, that Buyer fails to defend, the Parties being indemnified shall have the right, but not be responsible the obligation, to undertake the defense of, and to compromise or settle (exercising reasonable business judgment), the claim or other matter on behalf, for any losses or expenses resulting from the discovery of adverse information relating to the Propertyaccount, except to the extent Buyer exacerbates a pre-existing condition and at the Propertyrisk of the indemnifying Party. Notwithstanding If the claim is one that cannot by its nature be defended solely by the indemnifying Party (including any provision to the contrary in this Agreementfederal or state tax proceeding), the indemnity obligations of Buyer under this Agreement shall survive Parties being indemnified will make available all information and assistance that the earlier to occur of (i) any termination of this Agreement and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of Seller or any Seller Released indemnifying Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property may reasonably approved by Sellerrequest.
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Buyer’s Indemnity. Buyer shall keep the Property free from all liens by reason of the inspectionsWithout limiting any other rights or remedies available to Buyer, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and Seller shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, and hold Sellerharmless EWCO, SellerBuyer, Buyer's affiliates shareholders, officers directors and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirs, successors and assigns from, against and with respect to any claim, liability, obligation, loss, damage, assessment, judgment, cost and expense (collectivelyincluding, the "Seller Released Parties") harmless from and against any and all claimswithout limitation, demands, liabilities, judgments, penalties, losses, costs, damages and expenses (including reasonable attorneys' and expertsaccountants' fees and costs but expressly excluding punitiveand expenses reasonably incurred in investigating, specialpreparing, consequential defending against or incidental damagesprosecuting any litigation or claim, action, suit, proceeding or demand) with respect to of any breach kind or character arising out of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from incident, relating or attributable to, net of any studies, evaluations, inspections, investigations applicable EWCO or tests made by Buyer or Buyer's Representatives relating insurance proceeds and without giving effect to or in connection with the Property or entries by Buyer or Buyer's Representatives in, on or about the Property; provided, however, that Buyer shall not be responsible for any losses or expenses resulting from the discovery of adverse information relating tax benefit to the Propertyindemnified party, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination material inaccuracy in any representation or breach of warranty of Seller contained in this Agreement and or in any Schedule, certificate, instrument of transfer or other document or agreement executed by Seller in connection with this Agreement or otherwise made or given in connection with this Agreement, (ii) the Closing and shall not merge into the Deed and any failure by Seller to perform or observe, or to have performed or observed, in full any covenant, agreement or condition to be performed or observed by him under this Agreement or under any certificates or other documents or instruments delivered at Closingagreements executed by Seller in connection with this Agreement, for a period (iii) the enforcement of Buyer's rights to purchase the Shares under this Agreement, and (aiv) nine (9) months any agreements, contracts, negotiations or other dealings by EWCO or Seller with respect any person concerning the sale of the Shares. However, Seller's obligations, if any, to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior indemnify Buyer hereunder shall be limited to the expiration amount of said nine month period, Three Hundred Fifty Thousand and 00/100 ($350,000.00) Dollars or (b) one (1) year with respect to any the then current value of the Share Consideration as it may increase or decrease in value; unless the claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer for indemnity is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or based on the Property, Buyer shall, promptly following the request intentional misrepresentation or fraud of Seller, repair in which case there shall be no such damage, limitation on Buyer's right to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Sellerindemnify.
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Buyer’s Indemnity. Buyer shall keep the Property free from all liens by reason (a) Upon closing of the inspectionstransactions contemplated herein, tests, investigations, studies and examinations performed by Buyer and Buyer's Representatives, except hereby agrees to the extent arising out of the gross negligence or willful misconduct of Seller, Seller’s Related Parties, or any contractors, representatives or agents of any of the forgoing, and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, indemnify and hold SellerParent, Seller's affiliates Sellers and shareholders and each of their partners, members, managers, directors, officers, trustees, beneficiaries, employees, representatives, agents, attorneys, lenders, related and affiliated entities, heirsAffiliates, successors and assigns and their respective representatives (collectively, the "Seller Released PartiesSellers' Indemnitees") harmless from and against against, and agrees to defend promptly Sellers' Indemnitees from and reimburse Sellers' Indemnitees for, any and all claimsLosses that Sellers' Indemnitees may at any time suffer or incur, demandsor become subject to, liabilities, judgments, penalties, losses, costs, damages and expenses as a result of or in connection with: (including reasonable attorneys' and experts' fees and costs but expressly excluding punitive, special, consequential or incidental damagesi) with respect to any breach or inaccuracy of Section 4.6.1 above or otherwise relating to or arising in any manner whatsoever from any studies, evaluations, inspections, investigations or tests of the representations and warranties made by Buyer in or Buyer's Representatives pursuant to this Agreement or any instrument or document executed by Buyer in connection with or as a result of this Agreement; (ii) any failure by Buyer to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials executed and delivered by Buyer pursuant to this Agreement; (iii) the Assumed Liabilities; and (iv) claims by third parties against Parent or the Sellers relating to or the operation and ownership by Buyer of the Purchased Assets, the performance by Buyer under the Contracts and the Assumed Leases and the conduct of the Buyer in connection with the Property or entries by Buyer or Buyer's Representatives inBusiness from and after the Closing Date, on or about other than with respect to the PropertyRetained Liabilities; provided, however, that Sellers' Indemnitees shall have no right to be indemnified, held harmless from, defended or reimbursed under Section 8.2(a) hereof unless such right is asserted (whether or not such Claims have actually been incurred) on or before twenty-four months after the Closing Date, except that the indemnification by Buyer shall not be responsible for any losses or expenses resulting from the discovery of adverse information relating to the Property, except to the extent Buyer exacerbates a pre-existing condition at the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive the earlier to occur of (i) any termination of this Agreement and (ii) the Closing and shall not merge into the Deed and any other documents or instruments delivered at Closing, for a period of (a) nine (9) months with respect to any claim of Seller or any Seller Released Party unrelated to a claim of a third party unaffiliated with Seller or any Seller Released Parties, or any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Parties of which Seller (or such Seller Released Party) first becomes aware prior to the expiration of said nine month period, or (b) one (1) year with respect to any claim of Seller or any Seller Released Party relating to a claim made by a third party unaffiliated with Seller or any Seller Released Party of which Seller or such Seller Released Party first becomes aware after the expiration of said nine month period; provided however that if Seller or such Seller Released Party shall have provided written notice to Buyer with reasonable detail of a specified claim that Buyer is responsible for hereunder within the applicable period, then such period shall be extended until such claim is resolved. Without limiting the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or Buyer's Representatives' entry in or on the Property, Buyer shall, promptly following the request of Seller, repair such damage, to the extent permitted by law and subject to de minimis differences from the immediately prior condition of the Property reasonably approved by Seller.continue as to:
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Samples: Asset Purchase Agreement (Cadmus Communications Corp/New)
