Indemnification by Purchaser. Subject to the terms and conditions of this ARTICLE IX, from and after the Closing, the Purchaser shall indemnify and defend the Seller, its Affiliates, and each of their respective employees, directors, officers, stockholders, agents, and representatives (collectively, the “Seller Group”), against, and shall hold each of them harmless from, any and all Losses incurred or sustained by the Seller Group based upon or arising out of: (a) any inaccuracy in or breach of any of the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement); (c) any Assumed Liability; or (d) the Exploitation, development, manufacture, supply, marketing or distribution of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Losses.
Appears in 1 contract
Indemnification by Purchaser. Subject to the terms and conditions of this ARTICLE IX, from and after the Closing, the Purchaser shall indemnify indemnify, defend ---------------------------- and defend hold harmless the Seller, its AffiliatesPledging Shareholders, and each any of their respective employees, directors, officers, stockholders, agentsattorneys and representatives, and representatives their respective heirs, executors, administrators, successors and assigns (collectively, the “Seller Group”"Shareholder ----------- Representatives"), against, and shall hold each reimburse the Pledging Shareholders and the --------------- Shareholder Representatives, on demand, for any Damages resulting from any of them harmless from, any and all Losses incurred or sustained by the Seller Group based upon or arising out offollowing:
(ai) any inaccuracy Any breach or default in or breach the performance by Purchaser of any covenant or agreement of the representations or warranties of the Purchaser contained herein, in this Agreement any agreement contemplated hereby, or in any Schedule or Exhibit hereto or thereto, or in any certificate or other instrument delivered or to be delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation hereto or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date)thereto;
(bii) Any breach of warranty or inaccurate or erroneous representation made by Purchaser herein, in any breach or non-fulfillment of any covenant, agreementagreement contemplated hereby, or obligation in any Schedule or Exhibit hereto or thereto, or in any certificate or other instrument delivered or to be performed delivered by the or on behalf of Purchaser pursuant to this Agreement hereto or any other Transaction Document (which shall not include the Transition Services Agreement)thereto;
(ciii) any Assumed Liability; or
(d) the Exploitation, development, manufacture, supply, marketing or distribution Leardata's operation and conduct of the Compound or any Product following Business after the Closing. The foregoing indemnity obligations will not apply Closing Date, but only to (i) the extent that such Losses arise out of or result from Damages are not caused by the fraud, gross negligence, and/or willful reckless or wilful misconduct of Seller or its Affiliatesthe Shareholders; and
(iv) Any liability arising out of any and all Actions, and/or demands, judgments, costs and expenses incident to any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesforegoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Data Processing Resources Corp)
Indemnification by Purchaser. Subject Purchaser agrees to indemnify and hold harmless the terms Company, each of the Company's Affiliates (as defined below), directors and conditions officers, and each person, if any, who controls the Company within the meaning of this ARTICLE IXthe Act or the Exchange Act, from and after against any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) to which they may become subject (under the ClosingSecurities Act or otherwise) insofar as such losses, the Purchaser shall indemnify and defend the Sellerclaims, its Affiliatesdamages or liabilities (or actions or proceedings in respect thereof) arise out of, and each of their respective employees, directors, officers, stockholders, agents, and representatives (collectively, the “Seller Group”), against, and shall hold each of them harmless from, any and all Losses incurred or sustained by the Seller Group are based upon or arising out of:
(ai) any inaccuracy an untrue statement made in or breach of any of such Registration Statement in reliance upon and in conformity with written information furnished to the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered Company by or on behalf of the Purchaser pursuant to this Agreement, as specifically for use in preparation of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date Registration Statement, (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement);
(c) any Assumed Liability; or
(dii) the Exploitation, development, manufacture, supply, marketing or distribution failure of Purchaser to comply with the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunderand agreements contained in Section 3.2 hereof, or (iiiii) Losses for which Seller has an obligation any untrue statement in any prospectus that is corrected in any subsequent prospectus that was delivered to indemnify Purchaser prior to the pertinent sale or sales by Purchaser, and Purchaser Group pursuant to Section 9.02will, as incurred, reimburse the Company and such persons for any legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that Purchaser shall not be liable for any amount in excess of the amount by which the net amount received by Purchaser from the sale of the Shares to which Losses each Party shall indemnify such loss relates minus the other amount of any damages which Purchaser has otherwise been required to the extent pay by reason of its respective liability for such Lossesuntrue or alleged untrue statement or omission or alleged omission.
Appears in 1 contract
Indemnification by Purchaser. Subject to the terms and conditions of this ARTICLE IX, from and after the Closing, the Purchaser shall reimburse and indemnify ---------------------------- and defend the Seller, its Affiliates, hold Seller Parties and each of their respective employees, its directors, officers, stockholdersshareholders, agentsemployees, representatives and representatives (collectivelyagents harmless against and in respect of any Damages in connection with, the “Seller Group”), against, and shall hold each of them harmless from, any and all Losses incurred resulting from or sustained by the Seller Group based upon or arising out ofrelating to:
(a) any inaccuracy in and all liabilities or breach obligations of any nature whatsoever of or relating to claims for federal, state, local, foreign or other taxes assessed against Seller which arise out of or are related to Purchaser's operation or conduct of the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of Business after the Closing Date (except for representations and warranties that expressly relate excluding any claims with respect to a specified date, tax filings made after the inaccuracy in or breach of which will be determined with reference Closing relating to such specified datethe period prior to the Closing);
(b) any breach and all liabilities or non-fulfillment obligations of any covenant, agreement, nature whatsoever of or obligation relating to be performed by the Purchaser pursuant Business (except for those liabilities and obligations of or relating to this Agreement Seller or any other Transaction Document (which shall the Business existing as of the Closing Date not include included among the Transition Services Agreement)Assumed Obligations) arising out of Purchaser's operation of the Business after the Closing;
(c) any Assumed Liability; ormisrepresentation, breach of warranty or nonfulfillment of any covenant or agreement on the part of Purchaser under this Agreement;
(d) any and all actions, suits, claims, allegations, proceedings, investigations, audits, demands, assessments, fines, judgments, settlements, levies, costs and other expenses (including without limitation reasonable audit and legal fees) incident to the Exploitation, development, manufacture, supply, marketing foregoing; and
(e) any and all sales or distribution use tax imposed upon Seller under state law as a consequence of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesacquisition contemplated herein.
Appears in 1 contract
Indemnification by Purchaser. Subject to the terms and conditions of this ARTICLE IX, from and after the Closing, the Purchaser shall reimburse and indemnify ---------------------------- and defend hold the Seller, its Affiliates, Seller Parties and each of their respective employees, its directors, officers, stockholdersshareholders, agentsemployees, representatives and representatives (collectivelyagents harmless against and in respect of any Damages in connection with, the “Seller Group”), against, and shall hold each of them harmless from, any and all Losses incurred resulting from or sustained by the Seller Group based upon or arising out ofrelating to:
(a) any inaccuracy in and all liabilities or breach obligations of any nature whatsoever of or relating to claims for federal, state, local, foreign or other taxes assessed against Seller which arise out of or are related to Purchaser's operation or conduct of the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of Business after the Closing Date (except for representations and warranties that expressly relate excluding any claims with respect to a specified date, tax filings made after the inaccuracy in or breach of which will be determined with reference Closing relating to such specified datethe period prior to the Closing);
(b) any breach and all liabilities or non-fulfillment obligations of any covenant, agreement, nature whatsoever of or obligation relating to be performed by the Purchaser pursuant Assumed Liabilities and Obligations or to this Agreement the Business (except for those liabilities and obligations of or any other Transaction Document (which shall relating to Seller or the Business existing as of the Closing Date not include included among the Transition Services Agreement)Assumed Liabilities and Obligations) arising out of Purchaser's operation of the Business after the Closing;
(c) any Assumed Liability; ormisrepresentation, breach of warranty or nonfulfillment of any covenant or agreement on the part of Purchaser under this Agreement;
(d) any and all actions, suits, claims, allegations, proceedings, investigations, audits, demands, assessments, fines, judgments, settlements, levies, costs and other expenses (including without limitation reasonable audit and legal fees) incident to the Exploitation, development, manufacture, supply, marketing foregoing; and
(e) any and all sales or distribution use tax imposed upon Seller under state law as a consequence of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesacquisition contemplated herein.
Appears in 1 contract
Indemnification by Purchaser. Subject to the terms and conditions of this ARTICLE IX, from and after the Closing, the The Purchaser shall indemnify and defend hold harmless the SellerCompany, each of its Affiliatesdirectors, and each Person, if any, who controls the Company within the meaning of their respective employeesthe Securities Act, directorsagainst any losses, officersclaims, stockholdersdamages, agentsliabilities or expenses to which the Company, and representatives (collectivelyeach of its directors or each of its controlling Persons may become subject, under the Securities Act, the “Seller Group”)Exchange Act, againstor any other federal or state statutory law or regulation, and shall hold each or at common law or otherwise (including in settlement of them harmless fromany litigation, if such settlement is effected with the written consent of the Purchaser) insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise out of or are based upon (i) any and all Losses incurred or sustained failure by the Seller Group based upon or arising out of:
(a) any inaccuracy in or breach of any of Purchaser to comply with the representations or warranties covenants and agreements of the Purchaser contained in this Agreement or in (ii) the inaccuracy of any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by the Purchaser pursuant to this Agreement herein and will reimburse the Company, each of its directors, and each of its controlling Persons for any legal and other expenses reasonably incurred in connection with investigating, defending, settling, compromising or paying any other Transaction Document (which shall not include such loss, claim, damage, liability, expense or action; provided, however, that the Transition Services Agreement);
(c) any Assumed Liability; or
(d) the Exploitation, development, manufacture, supply, marketing or distribution of the Compound or any Product following the Closing. The foregoing indemnity obligations Purchaser will not apply be liable in any such case to the extent that any such loss, claim, damage, liability or expense arises out of or is based upon (i) the extent that such Losses arise out failure of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or Company to comply with the Company’s covenants hereunderand agreements contained in Transaction Documents, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify inaccuracy of any representations made by the other to the extent of its respective liability for such LossesCompany herein.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sorrento Therapeutics, Inc.)
Indemnification by Purchaser. Subject Purchaser covenants and agrees to the terms and conditions of this ARTICLE IXdefend, from and after the Closing, the Purchaser shall indemnify and defend the Seller, hold harmless Seller and its Affiliates, affiliates and each of their respective employeesofficers, directors, officersmanagers, stockholdersemployees, agents, successors and representatives permitted assigns (collectively, the “Seller GroupIndemnitees”), ) from and against, and shall hold each of them harmless from, any and pay or reimburse Seller Indemnitees for all Losses incurred by or sustained by the imposed upon such Seller Group based upon or Indemnitee and resulting from, arising out ofof or related to:
(a) any inaccuracy in or breach of any of the representations representation or warranties of the warranty made by Purchaser contained herein or in this any Purchaser Ancillary Agreement or in any other certificate or instrument document delivered by or on behalf of the Purchaser to Seller pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any act of fraud on the part of Purchaser related to this Agreement;
(c) any breach or non-fulfillment of any covenant, agreement, covenant or obligation to be performed by the agreement of Purchaser pursuant to contained in this Agreement or in any other Transaction Document (which shall not include the Transition Services Purchaser Ancillary Agreement);
(cd) any Assumed LiabilityLiabilities and any third party claims or other liabilities arising out of or based upon any of the Assumed Liabilities following Closing;
(e) operation and ownership of the Business or the Purchased Assets following Closing and any third party claims or other liabilities arising out of or based upon the Business or any of the Purchased Assets following Closing; or
(df) the Exploitationall actions, developmentsuits proceedings, manufacturedemands, supply, marketing assessments or distribution judgments (including all reasonable attorney fees and expenses) incident to any of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesforegoing.
Appears in 1 contract
Indemnification by Purchaser. Subject to the terms and conditions of this ARTICLE IXAgreement, from and after the ClosingClosing Date, the Purchaser ("Purchaser Indemnifying Party") shall indemnify indemnify, defend and defend the Seller, its Affiliates, hold Seller ("Seller Indemnified Party") harmless from and each of their respective employees, directors, officers, stockholders, agents, and representatives (collectively, the “Seller Group”), against, and shall hold each of them harmless from, against any and all Losses Loss incurred or sustained by the such Seller Group based upon Indemnified Party resulting or arising out offrom or related to, or incurred in connection with:
(a) 9.1.1. Subject to the provisions of the initial paragraph of ARTICLE V, any inaccuracy in or breach of any of the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or of Purchaser contained herein as if such representation or warranty was were made on and as of the Closing Date (except for any such representations and warranties that expressly relate are made at a specific date), to a specified datethe extent not otherwise giving rise to indemnification pursuant to subsection 9.1.2, 9.1.3 or 9.1.4; or
9.1.2. Any Assumed Liability after the inaccuracy in Closing Date, provided that Loss is not due to the action or inaction of Seller or any breach of which will be determined with reference to such specified date);any Seller’s representations, warranties and/or covenants under this Agreement or any Ancillary Agreement:
(b) any 9.1.3. Any breach or non-fulfillment of any covenant, agreementagreement or other undertaking of Purchaser contained therein;
9.1.4. The ownership and operation of the Pessac Business and Acquired Assets after the Closing provided that Loss is not due to the action or inaction of Seller or any breach of any Seller’s representations, or obligation to be performed by the Purchaser pursuant to warranties and/or covenants under this Agreement or any other Transaction Document Ancillary Agreement; and
9.1.5. Any Loss relating to Product sold by Purchaser under the Assumed Contracts (which shall not include including the Transition Services AgreementGSK Agreements);
(c) any Assumed Liability; or
(d) , from and after the Exploitation, development, manufacture, supply, marketing or distribution of the Compound or Closing except for any Product following included in the Closing. The foregoing indemnity obligations will not apply Acquired Inventory, including, any product recalls and product liability claims, relating to (i) the extent that such Losses arise out of adverse events or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesotherwise.
Appears in 1 contract
Indemnification by Purchaser. Subject to the terms and conditions of Except as set forth elsewhere in this ARTICLE IXAgreement or in any Schedule or Exhibit hereto, from and after the Closing, the Purchaser shall indemnify and defend the Sellerhold harmless Seller against and in respect of all Claims related to, its Affiliates, and each of their respective employees, directors, officers, stockholders, agents, and representatives (collectively, the “Seller Group”), against, and shall hold each of them harmless arising from, any and all Losses incurred or sustained by the Seller Group based upon or arising out ofassociated with:
(a) any inaccuracy in breach or breach of any violation of the representations or warranties of the Purchaser contained covenants made in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date)Purchaser;
(b) any breach or non-fulfillment violation of any covenant, agreement, the unexpired representations or obligation to be performed by the Purchaser pursuant to warranties made in this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement)by Purchaser;
(c) any Assumed Liability; orall product liability claims relating to occurrences involving products shipped by Purchaser after the Closing,
(d) the Exploitation, development, manufacture, supply, marketing or distribution of the Compound or any Product following claims for workers' compensation based on occurrences after the Closing. The foregoing indemnity obligations will not apply to ,
(ie) the extent that such Losses arise any acts, omissions, events, occurrences, circumstances or transactions of whatsoever type or nature associated with, arising out of or result from relating to the fraudownership, gross negligence, and/or willful misconduct use or possession of Seller or its Affiliates, and/or any related breach the Assets by Seller of its representations, warranties, and/or covenants hereunderPurchaser, or the conduct or operation of the Business by Purchaser, after the Closing;
(iif) Losses for which Seller has an obligation to indemnify the liabilities and obligations assumed by Purchaser Group pursuant to Section 9.022.4 hereof; and
(g) the failure to obtain consents or approvals from parties to any Contracts in connection with the transactions contemplated herein or the termination, placing in default or any other action that might be taken by any customer under the Contracts as to which Losses each Party shall indemnify a result of the other to the extent of its respective liability for such Lossestransactions contemplated by this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Herley Industries Inc /New)
Indemnification by Purchaser. Subject Purchaser hereby agrees to the terms indemnify, defend and conditions of this ARTICLE IX, from and after the Closing, the Purchaser shall indemnify and defend the hold harmless Seller, its Affiliates, and each of their respective employeesSeller's officers, directors, officersshareholders, stockholdersemployees, independent contractors, agents, successors and representatives assigns and Brady (collectively, the “Seller Group”), against, "Sexxxx Parties") from and shall hold each of them harmless from, against any and all Losses incurred or sustained by (as hereinafter defined) which any of the Seller Group Parties actually incur which are based upon on, the result of, arise out of or arising out ofare otherwise related to any of the following:
(a) any inaccuracy material breach of any representation or warranty of Purchaser or Parent contained in this Agreement, (provided, however, that Purchaser shall have no liability under this Agreement for the first $20,000 of damages arising out of or relating to any misrepresentation or breach of any of the representations a warranty or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered representation by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified datePurchaser);
(b) any breach (other than of a representation or non-fulfillment warranty) or failure of Purchaser to perform any covenant, agreement, covenant or obligation agreement required to be performed by the Purchaser it pursuant to this Agreement or any other Transaction Document (which shall not include of the Transition Services Agreement)Other Buyer Documents;
(c) any Assumed LiabilityLosses resulting from the Premises, Purchased Assets and/or the Business from and after the Closing Date, other than Losses which result from use or operation of the Premises Purchased Assets and/or Business prior to the Closing, including without limitation, Losses which result from a claim of infringement by a third party after the Closing (but not including claims of infringement arising out of modifications or changes to the Intellectual Property after the Closing); orand
(d) the ExploitationAssumed Liabilities, developmentor Purchaser's failure to perform, manufacture, supply, marketing or distribution of the Compound or pay and discharge any Product Assumed Liability following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Losses.
Appears in 1 contract
Sources: Asset Purchase Agreement (Netsmart Technologies Inc)
Indemnification by Purchaser. Subject Purchaser agrees to indemnify, defend and hold Seller, the Member Parties, Persons serving as officers, directors, employees, agents or representatives of Seller and Persons serving as officers, directors, employees, agents or representatives of the Member Parties or either of them (individually, a “Seller Indemnified Party” and, collectively, the “Seller Indemnified Parties”) harmless from and against any Losses which may be sustained or suffered by any of them arising out of or based upon any of the following matters:
(a) any breach of the representations and warranties made by Purchaser in this Agreement or in any Ancillary Document or the failure of such representations and warranties to be true and correct;
(b) any failure by Purchaser to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any Ancillary Document pursuant to the terms and conditions of this ARTICLE IX, from and after the Closing, the Purchaser shall indemnify and defend the Seller, its Affiliates, and each of their respective employees, directors, officers, stockholders, agents, and representatives (collectively, the “Seller Group”), against, and shall hold each of them harmless from, any and all Losses incurred or sustained by the Seller Group based upon or arising out of:
(a) any inaccuracy in or breach of any of the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement)Ancillary Document;
(c) any failure by Purchaser to pay, perform and discharge any of the Assumed Liability; orLiabilities as set forth in this Agreement;
(d) the Exploitation, development, manufacture, supply, marketing or distribution ownership and use of the Compound Purchased Assets after the Closing Date; and
(e) any liability in respect of any brokerage commission or finder’s, investment banker’s or similar fee alleged to be payable to any Product following agent, broker, consultant or other Person acting on behalf of Purchaser in connection with the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach transactions contemplated by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesthis Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Blonder Tongue Laboratories Inc)
Indemnification by Purchaser. Subject to the terms and conditions of this ARTICLE IX, from and after Notwithstanding the Closing, the Purchaser shall indemnify and defend the Seller, its Affiliates, and each of their respective employees, directors, officers, stockholders, agents, and representatives (collectively, the “Seller Group”), against, and shall hold each of them harmless from, any and all Losses incurred or sustained by the Seller Group based upon or arising out of:
(a) any inaccuracy in or breach regardless of any of the representations or warranties of the Purchaser contained in this Agreement or in investigation made at any certificate or instrument delivered time by or on behalf of Xxxxxxx or Seller or any information Xxxxxxx or Seller may have, but subject to the terms of Section 14.03, Purchaser pursuant agrees to this Agreementindemnify and to hold Xxxxxxx and Seller, as and its respective partners harmless from and against and in respect of any losses (including lost revenues), damages, costs, expenses, suits, demands, judgments and diminution in value incurred by Seller from:
(i) All liabilities and obligations of Purchaser, and all claims and demands made in respect thereof relating to or arising from, Purchaser's ownership, operation or control of the date such representation Assets or warranty was made the Business after the Closing, or as if such representation any other state of facts which exist after the Closing, including fines or warranty was made on and as forfeitures imposed or threatened to be imposed by the FCC for the operation, after the Closing of the Closing Date Business;
(except for ii) Any misrepresentation, breach of warranty, or nonfulfillment of any agreement or covenant on the part of Purchaser under this Agreement (such representations and warranties that expressly relate to a specified datebe read without regard to any materiality qualifications), (including Purchaser's failure to perform and discharge all of the liabilities and obligations assumed by Purchaser under Article III hereof), the inaccuracy exhibits hereto, the Management Agreement including exhibits thereto, the Escrow Agreement, the Assumption Agreement or in or breach of which will be determined with reference any closing certificate delivered by Purchaser to such specified date);Seller pursuant to Article XII hereof; and
(biii) All reasonable costs and expenses (including reasonable attorneys' fees) incurred by Xxxxxxx and Seller in connection with any breach action, suit, proceeding, demand, assessment or non-fulfillment of judgment incident to any covenant, agreement, or obligation to be performed by the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement);
(c) any Assumed Liability; or
(d) the Exploitation, development, manufacture, supply, marketing or distribution of the Compound matters Xxxxxxx or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach is indemnified against by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesin this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dobson Communications Corp)
Indemnification by Purchaser. Subject to the terms and conditions of Except as otherwise limited by this ARTICLE IX---------------------------- Article VI, from and after the Closing, the Purchaser shall indemnify and defend the hold harmless Seller, its Affiliates, and each of their respective employees, directors, the Managing Members and Seller's officers, stockholdersmanagers, members, employees, agents, successors and representatives assigns (collectivelyin each case, the “a "Seller Group”), against, and shall hold each of them harmless from, Indemnified Party") from any and all Losses liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including, without limitation, reasonable legal costs and expenses) suffered or incurred or sustained by the any of them (hereinafter a "Seller Group based upon or Loss") arising out ofof or resulting from:
(a) any inaccuracy in or the breach of any representation or warranty by Purchaser or Parent contained herein or in any exhibit, schedule or certificate delivered under this Agreement;
(b) the breach of any covenant or agreement by Purchaser or Parent contained herein or in any Purchaser's Document; or
(c) the representations failure of Purchaser to timely pay, perform or warranties of otherwise discharge the Purchaser Assumed Liabilities. Nothing contained in this Agreement or in otherwise shall obligate Purchaser to indemnify and hold harmless any certificate Seller Indemnified Party with respect to any Seller Loss incurred or instrument delivered by or on behalf of the Purchaser pursuant suffered prior to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement);
(c) any Assumed Liability; or
(d) the Exploitation, development, manufacture, supply, marketing or distribution of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise arising out of or result resulting from any Labor Loss, other than Seller Losses consisting of back pay or other awards or settlement payments to employees, fines, penalties or other similar payments arising out of or resulting from the fraudLabor Claims or the Labor Matters, gross negligence, and/or willful misconduct of incurred by such Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Indemnified Party shall indemnify the other prior to the extent of its respective liability for Closing, and imposed or assessed against such LossesSeller Indemnified Party subsequent to the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Chart House Enterprises Inc)
Indemnification by Purchaser. Subject to the terms and conditions of Notwithstanding any provisions contained in this ARTICLE IXAgreement, from and after the Closing, the Purchaser shall indemnify (including reasonable attorneys' fees and costs) defend the Seller, its Affiliates, and each of their respective employees, directors, officers, stockholders, agents, hold Seller and representatives (collectively, the “Seller Group”), against, and shall hold each of them harmless from, any and all Losses incurred or sustained by the Seller Group based upon or arising out ofassigns harmless:
(a1) any inaccuracy in from and against all losses, costs, damages, expenses or breach liabilities arising out of any Purchaser's conduct of the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and Business as of the Closing Date (except for representations and warranties that expressly relate to a specified date, or ownership of the inaccuracy in or breach Purchased Assets as of which will be determined with reference to such specified date)the Closing Date;
(b2) from and against any claim in conjunction with liabilities and obligations being assumed by Purchaser hereunder:
(3) with respect to any material breach of a material representation, warranty, covenant, or agreement (including without limitation any breach of one or more of Purchaser's covenants and/or agreements under this Agreement), or non-fulfillment of any covenant, agreement, or material obligation to be performed by on the part of Purchaser pursuant to under this Agreement or contained in the Schedules or Exhibits annexed to this Agreement, or otherwise delivered to Seller, or any material misrepresentation in any certificate or other Transaction Document (which shall not include the Transition Services instrument furnished to Seller under this Agreement);:, and
(c4) with respect to any Assumed Liability; or
(d) causes of action, proceedings, suits, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys' fees incident to the Exploitation, development, manufacture, supply, marketing or distribution foregoing. If any claim is asserted in writing against the Seller relating to any of the Compound matters described in this Section, Seller shall notify Purchaser within fifteen (15) days of receipt of the claim or demand, and Purchaser shall have the right to control the defense, compromise or settlement of the claim or demand, provided that Purchaser covenants and agrees to keep Seller periodically and reasonably appraised of the status of same, and provided further that Purchaser does not take any Product following action or omit taking any action, the Closing. The foregoing indemnity obligations will not apply effect of which would cause a material detriment to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesassets.
Appears in 1 contract
Indemnification by Purchaser. Subject to the terms and conditions of this ARTICLE IX, from From and after the Closing, the Purchaser shall reimburse, indemnify and defend the Seller, its Affiliates, Seller’s Affiliates and each of their respective employeesofficers, directors, officers, stockholders, agentsemployees and agents in respect of, and representatives (collectively, the “Seller Group”), against, and shall hold each of them harmless fromfrom and against, any and all Losses suffered, incurred or sustained by the Seller Group based upon any of them or to which any of them becomes subject, resulting from, arising out ofof or relating to:
(a) any inaccuracy in or breach of any of the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date)Assumed Liabilities;
(b) any misrepresentation or breach of warranty by Purchaser made or non-fulfillment of any covenant, agreement, or obligation to be performed by contained in the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement)Agreements;
(c) any Assumed Liability; orfailure by Purchaser to duly perform or observe any covenant or agreement to be performed or observed by Purchaser pursuant to the Transaction Agreements;
(d) the Exploitationany Liability arising from any: (A) product liability, developmentbreach of warranty, manufacturemisbranding, supply, marketing or distribution of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunderinfringement, or (iiB) Losses any other action or claim, in the case of each of (A) and (B) resulting from the manufacture and sale by Purchaser on or after the Closing Date of Product (including any Liabilities relating to voluntary or involuntary recalls of Product), or with respect to Products for which Seller has Purchaser approved the quality release, brought, asserted or filed by any third party or Regulatory Authority; provided, however, Purchaser shall only have an obligation to indemnify the Purchaser Group pursuant to under this Section 9.02, as to which Losses each Party shall indemnify the other 8.2(d) only to the extent such Liability does not arise from or relate to a breach of any of Seller’s representations or warranties hereunder relating to the Product, the Product Assets, and the Purchased Assets, or any act or omission of the Seller or any of its respective liability for such LossesAffiliates;
(e) in accordance with Sections 6.2 and 6.3, any pricing information provided to Seller or pricing action taken by Purchaser after the Closing Date that impacts Seller’s Liability to any Program.
Appears in 1 contract
Indemnification by Purchaser. Subject After the Closing, and regardless of any investigation made at any time by or on behalf of Seller or any information Seller may have, but subject to the terms and conditions of this ARTICLE IXArticle XIII, from and after the Closing, the Purchaser shall agrees to indemnify and defend the to hold Seller, and its Affiliates, and each of their respective employees, directors, officers, stockholders, agentsemployees, representatives and agents harmless from and against and in respect of any Losses incurred by Seller from:
(i) All liabilities and obligations of Purchaser, and representatives all claims and demands made in respect thereof, relating to or arising from Purchaser's ownership, operation or control of the Assets or the Business after the Closing, including on account of the Assumed Liabilities; and;
(collectivelyii) Any misrepresentation or breach of warranty in, the “Seller Group”), against, and shall hold each of them harmless or omission from, any and all Losses incurred representation or sustained by the Seller Group based upon or arising out of:
(a) any inaccuracy in or breach warranty of any of the representations or warranties of the Purchaser contained in this Agreement, the Schedules or Exhibits hereto, including the Closing Escrow Agreement, the Deposit Escrow Agreement, the Assumption Agreement or in any closing certificate or instrument delivered by or on behalf of the Purchaser to Seller pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date)Article XI hereof;
(biii) any Any breach or non-fulfillment of any covenant, agreement, covenant or obligation agreement on the part of Purchaser under this Agreement to be performed by on or following the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement);Closing Date; and
(civ) All reasonable costs and expenses (including reasonable attorneys' fees) incurred by Seller in connection with any Assumed Liability; or
(d) the Exploitationaction, developmentsuit, manufactureproceeding, supplydemand, marketing assessment or distribution judgment incident to any of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of matters Seller or its Affiliates, and/or any related breach is indemnified against by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesin this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dobson Communications Corp)
Indemnification by Purchaser. Subject Purchaser covenants and agrees to the terms and conditions of this ARTICLE IXdefend, from and after the Closing, the Purchaser shall indemnify and defend the Seller, hold harmless Seller and its Affiliates, affiliates and each of their respective employeesofficers, directors, officersmanagers, stockholdersemployees, agents, successors and representatives permitted assigns (collectively, the “Seller GroupIndemnitees”), ) from and against, and shall hold each of them harmless from, any and pay or reimburse Seller Indemnitees for all Losses incurred by or sustained by the imposed upon such Seller Group based upon or Indemnitee and resulting from, arising out ofof or related to:
(a) any inaccuracy in or breach of any of the representations representation or warranties of the warranty made by Purchaser contained herein or in this any Purchaser Ancillary Agreement or in any other certificate or instrument document delivered by or on behalf of the Purchaser to Seller pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any act of fraud on the part of Purchaser related to this Agreement;
(c) any breach or non-fulfillment of any covenant, agreement, covenant or obligation to be performed by the agreement of Purchaser pursuant to contained in this Agreement or in any other Transaction Document (which shall not include the Transition Services Purchaser Ancillary Agreement);
(cd) any Assumed LiabilityLiabilities and any third party claims or other liabilities arising out of or based upon any of the Assumed Liabilities following Closing;
(e) operation and ownership of the Business or the Purchased Assets from and after the Closing Date and any third party claims or other liabilities arising out of or based upon the Business or any of the Purchased Assets from and after the Closing Date; or
(df) the Exploitationall actions, developmentsuits proceedings, manufacturedemands, supply, marketing assessments or distribution judgments (including all reasonable attorney fees and expenses) incident to any of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesforegoing.
Appears in 1 contract
Indemnification by Purchaser. Subject to the terms and conditions provisions of this ARTICLE IXArticle X and except with respect to indemnification for Taxes (which shall be governed exclusively by Article VII), from effective as of and after the Closing, Purchaser and the Purchaser Transferred Entities shall indemnify and defend the Seller, hold harmless Seller and its Affiliates, and each of their respective employees, directors, officers, stockholders, agents, and representatives Affiliates (collectively, the “Seller GroupIndemnified Parties”), against, from and shall hold each of them harmless from, against any and all Losses actually incurred or sustained suffered by any of the Seller Group based upon or Indemnified Parties, to the extent arising out of:
of or resulting from (a) any inaccuracy in or breach of any of the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on of Purchaser, at and as of the Closing Date as though made at and as of such time (except for representations and warranties that expressly relate to unless made as of a specified specific date, the inaccuracy in or which case at and as of such date), contained in Article IV, provided that any breach of which will any such representation or warranty and any Losses resulting therefrom shall be determined with reference without giving effect to any limitations or qualifications contained in such specified date);
representation or warranty regarding materiality or Purchaser Material Adverse Effect; (b) any breach or non-fulfillment of any covenant, agreement, covenant or obligation to be performed by the agreement of Purchaser pursuant to contained in this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement);
; (c) any Assumed LiabilityLiability arising out of or relating to the Business (including the ownership and operation thereof), the ownership, occupation or use by the Transferred Entities of the Business Owned Real Property or the Business Leased Real Property, whether any such Liability arises before or after Closing, is known or unknown, contingent or accrued; or
and (d) without duplication of any Liability described in the Exploitationforegoing clause (c), development, manufacture, supply, marketing or distribution the failure to pay any amounts when due of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other Liability to the extent reflected in, reserved for or taken into account in the determination of its respective liability for such LossesWorking Capital or Indebtedness on the Final Closing Working Capital and Net Indebtedness Statements.
Appears in 1 contract
Indemnification by Purchaser. Subject to the terms and conditions provisions of this ARTICLE IXArticle XII, from and after the Closing, the Purchaser shall covenants and agrees to indemnify and defend the Sellerhold harmless Seller and Equityholders, its Affiliatesand, and each of as applicable, their respective employeesofficers, directors, officersmanagers, stockholdersequityholders, agentsemployees, agents and representatives heirs (collectivelytogether, the “Seller GroupIndemnitees”), against, ) from and shall hold each of them harmless from, against any and all Losses Adverse Consequences incurred or sustained suffered by the Seller Group based upon Indemnitees to the extent arising or arising out ofresulting from any of the following:
(a) any inaccuracy in or breach of, or, with respect to a third-party claim, any alleged breach or inaccuracy of, any representation or warranty of any of the representations or warranties of the Purchaser contained set forth in this Agreement or in any document or certificate or instrument delivered by or on behalf of the Purchaser pursuant to in connection with this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement, covenant or obligation to be performed agreement of Purchaser set forth herein or in any document or certificate delivered by the Purchaser pursuant to in connection with this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement);
(c) any breach of any covenant or agreement of the Company set forth herein or in any document or certificate delivered by the Company in connection with this Agreement, in each case, to be performed or complied with by the Company after the Closing;
(d) any Assumed Liability;
(e) Purchaser’s allocable share of any Transfer Taxes (as determined pursuant to Section 2.9); or
(df) the Exploitation, development, manufacture, supply, marketing or distribution of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to Guarantees (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other but solely to the extent of its respective arising or resulting from a liability for such Lossesincurred after the Closing under the associated Lease, License, Material Contract or Indebtedness).
Appears in 1 contract
Sources: Purchase Agreement (Hub Group, Inc.)
Indemnification by Purchaser. Subject to the terms and conditions of this ARTICLE IX, from From and after the Global Closing or the China Closing, the as applicable, Purchaser shall indemnify indemnify, defend and defend the Seller, hold harmless Seller and each of its Affiliates, affiliates and each of their respective employeesofficers, directors, officersemployees, stockholders, agents, agents and representatives (collectively, the “Seller GroupIndemnitees”), against, ) from and shall hold each of them harmless from, against any and all Losses suffered or incurred by such Seller Indemnitee (without duplication for any Loss for which indemnification may be provided under more than one provision of this Section 9.02) to the extent arising or sustained by resulting from any of the Seller Group based upon or arising out offollowing:
(ai) any inaccuracy in breach as of the Global Closing Date or breach the China Closing Date of any representation or warranty of the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Ancillary Agreement, as without giving effect, solely for purposes of determining the amount of any Losses associated therewith (and not, for the avoidance of doubt, for purposes of determining if such a breach has occurred), to any materiality or Purchaser Material Adverse Effect qualifier contained therein;
(ii) any breach of any covenant of Purchaser contained in this Agreement or any Ancillary Agreement contemplated to be performed prior to the date of such representation breach, provided that breaches of covenants relating to the China Business or warranty was made or as if such representation or warranty was made on the China Acquisition shall only be subject to indemnification following the China Closing;
(iii) any Assumed Liability after the Global Closing (in the case of Assumed Liabilities assumed in connection with the Global Closing) and as after the China Closing (in the case of Assumed Liabilities assumed in connection with the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified dateChina Closing);
(biv) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by the Purchaser pursuant to this Agreement (or any other Transaction Document (which shall not include the Transition Services Agreementaffiliate thereof) of Section 2.04(b);; and
(cv) any Assumed Liability; or
(d) the Exploitationfees, development, manufacture, supply, marketing expenses or distribution of the Compound other payments incurred or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller owed by Purchaser or its Affiliatesaffiliates to any agent, and/or any related breach broker, investment banker or other firm or person retained or employed by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify it in connection with the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossestransactions contemplated by this Agreement.
Appears in 1 contract
Indemnification by Purchaser. Subject to the terms and conditions of this ARTICLE IX, from and after the After Closing, the Purchaser covenants and shall indemnify Seller and defend the Seller, its Affiliates, hold it harmless against and each of their respective employees, directors, officers, stockholders, agents, and representatives (collectively, the “Seller Group”), against, and shall hold each of them harmless from, with respect to any and all Losses incurred or sustained by the Seller Group based upon or arising out of:
resulting from (ai) any inaccuracy in or misrepresentation, breach of warranty, or failure to fulfill any agreement or covenant on the part of the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to under this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date ; (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(bii) any breach claim relating to any liability of Seller or non-fulfillment of any covenant, agreement, or obligation to be performed the Center that are expressly assumed by the Purchaser pursuant to the terms of this Agreement Agreement; (iii) any claim relating to the operation of the Center arising from events or transactions occurring after the Closing; and (v) any and all actions, suits, proceedings, demands, assessments, judgments, costs and legal and other Transaction Document (expenses incident to any of the foregoing. If any claim or demand for which Purchaser will be liable to Seller pursuant to this Paragraph 9.2 is asserted against or sought to be collected from Seller by a third party, Seller will give written notice thereof to Purchaser, and Purchaser shall have the option to defend Seller against such claim or demand by counsel satisfactory to Seller, provided, however, that Purchaser shall not, in defense of any such claim, except with the prior written consent of Seller, consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the Transition Services Agreement);
(c) giving by the claimant or plaintiff in question to Seller and its affiliates a release of any Assumed Liability; or
(d) the Exploitation, development, manufacture, supply, marketing or distribution liabilities in respect of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunderclaims, or (ii) Losses for which Seller has an obligation to indemnify that does not result only in the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent payment of its respective liability for such Lossesmoney damages by Purchaser.
Appears in 1 contract
Indemnification by Purchaser. Subject to the terms and conditions of limitations set forth in this ARTICLE IXArticle VIII, from and after the Closing, the Purchaser shall indemnify Seller and defend the Seller, its Affiliates, Affiliates and each of its and their respective employeesofficers, directors, officersmanagers, partners, agents, equityholders, members, stockholders, agents, attorneys and representatives other Representatives (collectively, the “Seller GroupIndemnified Persons”), against, ) and shall hold each of them harmless fromagainst any Losses suffered or incurred by Seller Indemnified Persons, or any and all Losses incurred of them, arising or sustained by the Seller Group resulting from or based upon or arising out of:
(a) any inaccuracy in or breach of any of the representations or warranties of the Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on by Purchaser in Article V and as of the Closing Date (except for representations and warranties that expressly relate to a specified datein any closing certificate in respect thereof, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment or breach by Purchaser of any covenant, agreementcovenant or agreement contained in this Agreement, or obligation in the other Transaction Documents to which Purchaser is a party, and required to be performed by Purchaser after the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement);
Closing, (c) any Assumed Liability; or
Assigned Assets (from and after the Closing) and/or (d) any Assumed Liability, in the Exploitationcase of each of clause (a) through (d), developmentincluding fees or other costs related to the defense of any proceeding that is terminated by settlement, manufacturejudgment, supplyorder or conviction, marketing or distribution upon a plea of nolo contendere or its equivalent. No claim for indemnification hereunder may be made after the expiration of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent applicable survival period specified in Section 8.01(b); provided, that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other if and to the extent Seller has properly delivered prior to the expiration of its respective liability for the applicable survival period an Indemnification Claim Notice with respect to any claim, such Lossesclaim shall survive until finally resolved or judicially determined.
Appears in 1 contract
Indemnification by Purchaser. Subject to After the terms and conditions of this ARTICLE IX, from and after the Primary Closing, the Purchaser shall indemnify and defend the Seller, its Affiliates, and each of their respective employees, directors, officers, stockholders, agents, and representatives (collectively, the “Seller Group”), against, and shall hold each of them harmless from, any and all Losses incurred or sustained by the Seller Group based upon or arising out of:
(a) any inaccuracy in or breach regardless of any of the representations or warranties of the Purchaser contained in this Agreement or in investigation made at any certificate or instrument delivered time by or on behalf of Seller or any information Seller may have, but subject to the terms of this Article XIV, Purchaser pursuant agrees to indemnify and to hold Seller, and its managers, officers, members, employees, representatives and agents harmless from and against and in respect of any Losses incurred by Seller from:
(i) All liabilities and obligations of Purchaser, and all claims and demands made in respect thereof relating to or arising from, Purchaser's ownership, operation or control of the Assets or the Business after the Primary Closing, including on account of the Assumed Liabilities; and
(ii) Any misrepresentation or breach of warranty in, or omission from, any representation or warranty of Purchaser, in this Agreement, as of the date such representation Schedules or warranty was made or as if such representation or warranty was made on and as of Exhibits hereto, including the Closing Date (except for representations and warranties that expressly relate to a specified dateDeposit Escrow Agreement, the inaccuracy Purchase Escrow Agreement, the Management Agreement, the Assumption Agreement or in or breach of which will be determined with reference any closing certificate delivered by Purchaser to such specified date)Seller pursuant to Article XI hereof;
(biii) any Any breach or non-fulfillment of any covenant, agreement, covenant or obligation agreement on the part of Purchaser under this Agreement to be performed by on or following the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement);Primary Closing Date; and
(civ) All reasonable costs and expenses (including reasonable attorneys' fees) incurred by Seller in connection with any Assumed Liability; or
(d) the Exploitationaction, developmentsuit, manufactureproceeding, supplydemand, marketing assessment or distribution judgment incident to any of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of matters Seller or its Affiliates, and/or any related breach is indemnified against by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesin this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dobson Communications Corp)
Indemnification by Purchaser. Subject to the terms and conditions of this ARTICLE IX, from From and after the Closing, the Purchaser shall indemnify indemnify, defend and defend the hold harmless Seller, its Affiliatesand any parent, and each subsidiary, Affiliate, stockholder, partner, director, officer, employee or agent of their respective employees, directors, officers, stockholders, agents, and representatives Seller (collectively, the “"Seller Group”), Indemnified Parties") from and against, and shall hold each pay on behalf of them harmless fromor reimburse such party in respect of, any and all Losses incurred Losses, which Seller Indemnified Parties may at any time suffer or sustained by the Seller Group based upon incur, or arising out ofbecome subject to, as a result of or in connection with:
(a) any inaccuracy in or breach of any of the representations representation, warranty, covenant or warranties of the agreement made by Purchaser contained in under this Agreement or in any certificate certificate, agreement or other instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach fees, expenses or non-fulfillment of any covenant, agreement, other payments incurred or obligation to be performed owed by the Purchaser pursuant to any agent, broker, investment banker or other firm or Person retained or employed in connection with the transactions contemplated by this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement);; or
(c) the use, operation or care by Purchaser or any Assumed Liability; or
(d) the Exploitation, development, manufacture, supply, marketing or distribution Acquired Subsidiary of the Compound or any Product Transition Equipment following the Closing. The foregoing indemnity obligations will not apply , including any damage to such Transition Equipment (ihowever caused) occurring during the extent that Transition Term or upon the removal of such Losses arise out of or result Transition Equipment from the fraud, gross negligence, and/or willful misconduct of Seller Facilities or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation return to indemnify the Purchaser Group THCI pursuant to Section 9.02, as to which Losses each Party shall indemnify the other 7.8. Notwithstanding anything to the extent contrary contained in this Agreement, the parties acknowledge and agree that if Seller has knowledge of its respective liability a breach or any inaccuracy of any such representation or warranty of Purchaser or of the existence of any facts or circumstances that would result in the breach of or inaccuracy in any such representation or warranty and Seller proceeds with the Closing, Seller shall be deemed to have waived and released any claim for such Lossesindemnification with respect thereto.
Appears in 1 contract
Indemnification by Purchaser. Subject Purchaser covenants and agrees to the terms and conditions of this ARTICLE IXdefend, from and after the Closing, the Purchaser shall indemnify and defend the Seller, hold harmless Seller and its Affiliates, affiliates and each of their respective employeesofficers, directors, officersmanagers, stockholdersemployees, agents, successors and representatives permitted assigns (collectively, the “Seller GroupIndemnitees”), ) from and against, and shall hold each of them harmless from, any and pay or reimburse Seller Indemnitees for all Losses incurred by or sustained by the imposed upon such Seller Group based upon or Indemnitee and resulting from, arising out of:
of or related to: (a) any inaccuracy in or breach of any of the representations representation or warranties of the warranty made by Purchaser contained herein or in this any Purchaser Ancillary Agreement or in any other certificate or instrument document delivered by or on behalf of the Purchaser to Seller pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
; 18 (b) any act of fraud on the part of Purchaser related to this Agreement; (c) any breach or non-fulfillment of any covenant, agreement, covenant or obligation to be performed by the agreement of Purchaser pursuant to contained in this Agreement or in any other Transaction Document Purchaser Ancillary Agreement; (which shall not include the Transition Services Agreement);
(cd) any Assumed Liability; or
(d) the Exploitation, development, manufacture, supply, marketing Liabilities and any third party claims or distribution of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise other liabilities arising out of or result from based upon any of the fraud, gross negligence, and/or willful misconduct Assumed Liabilities following Closing; (e) operation and ownership of Seller the Business or its Affiliates, and/or the Purchased Assets following Closing and any related breach by Seller third party claims or other liabilities arising out of its representations, warranties, and/or covenants hereunder, or based upon the Business or any of the Purchased Assets following Closing; or (iif) Losses for which Seller has an obligation all actions, suits proceedings, demands, assessments or judgments (including all reasonable attorney fees and expenses) incident to indemnify any of the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesforegoing.
Appears in 1 contract
Sources: Asset Purchase Agreement
Indemnification by Purchaser. (a) Subject to Section 17.6, in the terms and conditions of this ARTICLE IX, from and after event that the transactions herein contemplated are completed at the Closing, the Purchaser shall agrees to indemnify and defend hold the SellerVendor harmless from and against any loss, its Affiliatesdamage, claim, Legal Proceeding, deficiency or expense, including all out-of-pocket costs and each of their respective employeesincluding, directorswithout limitation, officersall reasonable legal and accounting fees, stockholdersrelating to, agents, and representatives (collectively, arising from or in connection with the “Seller Group”), against, and shall hold each of them harmless from, any and all Losses incurred or sustained by the Seller Group based upon or arising out offollowing matters:
(ai) any inaccuracy in misrepresentation or breach of any of the representations warranty, obligation, covenant or warranties agreement of the Purchaser contained in this Agreement or in any certificate agreement, certificate, affidavit, statutory declaration or instrument other document delivered by or on behalf of the Purchaser given pursuant to this Agreement, as ;
(ii) the assertion against the Vendor of any claim or liability relating to the Business which arises from a liability of the date such representation Business to be assumed by the Purchaser as provided in Section 5.1 or warranty was made or as if such representation or warranty was made on and as the operation of the Closing Date Business after the Effective Time;
(except iii) the failure of the Purchaser to discharge those liabilities of the Business to be assumed by the Purchaser as provided in Section 5.1; and
(iv) subject to Section 12.1(c), any claims (including claims for representations and warranties that expressly relate to a specified dateseverance, the inaccuracy in or notice of termination, breach of which will be determined contract, constructive dismissal or damages in connection therewith) relating to the employment of any of the Transferred Employees or the termination of the employment of any of such employees with reference claims arise from facts after the Closing Date, including the continuation, discontinuation or provision to such specified date);any employee of the employment policies, benefit plans or other benefits previously provided by the Vendor.
(b) any breach or non-fulfillment The obligation of any covenant, agreement, or obligation to be performed by the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement);
(c) any Assumed Liability; or
(d) the Exploitation, development, manufacture, supply, marketing or distribution of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant Vendor as set forth in paragraph (a) of this Section 17.2 with respect to any misrepresentation or breach of warranty shall be subject to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Losses9.2.
Appears in 1 contract
Sources: Asset Purchase Agreement (McSi Inc)
Indemnification by Purchaser. Subject After the Closing, and regardless of any investigation made at any time by or on behalf of Seller or any information Seller may have, but subject to the terms and conditions of this ARTICLE IXArticle XIII, from and after the Closing, the Purchaser shall agrees to indemnify and defend the to hold Seller, and its Affiliates, and each of their respective employees, directors, officers, stockholders, agentsemployees, representatives and agents harmless from and against and in respect of any Losses incurred by Seller from:
(i) All liabilities and obligations of Purchaser, and representatives all claims and demands made in respect thereof relating to or arising from, Purchaser's ownership, operation or control of the Assets or the Business after the Closing, including on account of the Assumed Liabilities; and
(collectivelyii) Any misrepresentation or breach of warranty in, the “Seller Group”), against, and shall hold each of them harmless or omission from, any and all Losses incurred representation or sustained by the Seller Group based upon or arising out of:
(a) any inaccuracy in or breach warranty of any of the representations or warranties of the Purchaser contained Purchaser, in this Agreement, the Schedules or Exhibits hereto, including the Closing Escrow Agreement, the Management Agreement, the Assumption Agreement or in any closing certificate or instrument delivered by or on behalf of the Purchaser to Seller pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date)Article XI hereof;
(biii) any Any breach or non-fulfillment of any covenant, agreement, covenant or obligation agreement on the part of Purchaser under this Agreement to be performed by on or following the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services Agreement);Closing Date; and
(civ) All reasonable costs and expenses (including reasonable attorneys' fees) incurred by Seller in connection with any Assumed Liability; or
(d) the Exploitationaction, developmentsuit, manufactureproceeding, supplydemand, marketing assessment or distribution judgment incident to any of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of matters Seller or its Affiliates, and/or any related breach is indemnified against by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesin this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dobson Communications Corp)
Indemnification by Purchaser. Subject to (a) If the terms Closing occurs, each of the Purchasers shall, jointly and conditions severally, indemnify each Seller and their respective general partners, limited partners, officers and directors of this ARTICLE IXeach of them, from and after the Closing, the Purchaser shall indemnify and defend the Seller, its Affiliatesin respect of, and each of their respective employees, directors, officers, stockholders, agents, and representatives (collectively, the “Seller Group”), against, and shall hold each of them harmless from, from and against any and all Losses suffered, incurred or sustained by the Seller Group based upon any of them or to which any of them becomes subject, whether or not involving a Third Party Claim, resulting from, arising out of:
of or relating to (ai) any inaccuracy in or breach of any of the representations or and warranties of the Purchaser Purchasers contained in this Agreement (including, without limitation, any certificate delivered in connection herewith), (ii) any nonfulfillment of or failure to perform any covenant or agreement on the part of the Purchasers contained in this Agreement or in any of the Operative Agreements (including, without limitation, any certificate or instrument delivered by or on behalf in connection herewith), including the existence of any Lien other than any Permitted Lien, (iii) any of the Assumed Liabilities, and (iv) any claim by any Person other than any Seller, any Affiliate of any Seller, or any equity holder or creditor of the foregoing, under applicable bankruptcy, fraudulent conveyance or transfer or similar Law or other Law, and stemming from a Purchaser pursuant or a Business Subsidiary not being solvent immediately after the Closing (as a result of the Financing or other actions taken by Purchasers or the Business Subsidiaries) and that was solvent immediately prior to the Closing, that the acquisition of the Transferred Interests and Business Assets and Assumed Liabilities by Purchasers under this Agreement were invalid or illegal or can be set aside or result in an award of damages and only if (1) the provisions of Section 14.01 would not provide for indemnification of Purchaser without giving effect to the provision of 14.01(b); and (2) any such claim does not relate to the Purchase Price paid to any Seller or the allocation thereof; provided, (i) that if and to the extent that any indemnification under this Section 14.02(a) is unenforceable, but subject to 113 the same terms, conditions, limitations and time periods applicable to such indemnification under this Agreement, as the Purchasers and the Business Subsidiaries shall make the maximum contribution to the payment, and satisfaction of the date indemnified Losses as shall be permissible under applicable Laws and (ii) in no event will Purchasers be liable to provide any indemnification under this Section 14.02(a) as to any matter to the extent that Sellers bear indemnification responsibility under Article XII hereof for such representation or warranty was made or as if such representation or warranty was made on and as matter. For the avoidance of the Closing Date (except for representations and warranties that expressly relate doubt, no Person shall be entitled to indemnification under Section 14.02(a) with respect to a specified date, matter to the inaccuracy in or breach of which will be determined extent that any Seller would bear indemnification responsibility under Section 14.01(a) with reference respect to such specified date);matter.
(b) any No amounts of indemnity shall be payable as a result of a claim under Section 14.02(a)(i) in respect of a breach of a representation or non-fulfillment warranty of any covenantPurchasers (other than a claim based upon fraud or willful or criminal misconduct or, agreementwith respect to the Deductible but not the Covered Losses limitation, or obligation pursuant to be performed by the Purchaser pursuant to this Agreement or any other Transaction Document (which shall not include the Transition Services AgreementFundamental Representations);
(c) any Assumed Liability; or
(d) the Exploitation, development, manufacture, supply, marketing or distribution of the Compound or any Product following the Closing. The foregoing indemnity obligations will not apply to (i) with respect to Losses arising from any single event or series of related events that do not exceed the extent that such Covered Losses arise out of or result from the fraudlimitation amount, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or and (ii) unless and until the Indemnified Parties have suffered, incurred, sustained or become subject to Losses (other than Covered Losses) with respect thereto in excess of the Deductible in the aggregate, in which case the Indemnified Parties shall be entitled to indemnification for which Seller has an the amount of Losses in excess the Deductible; provided, however, that the aggregate indemnification obligation to indemnify of the Purchasers for claims under (a) Section 14.02(a)(i)(other than claims based upon fraud or willful or criminal misconduct or for breach of the Purchaser Group pursuant Fundamental Representations) shall be limited to US$31,000,000 and (b) Section 9.02, as to which Losses each Party 14.02(a)(i) for all claims (other than claims based upon fraud or willful misconduct) shall indemnify the other be limited to the extent of its respective liability for such LossesFinal Total Purchase Price.
Appears in 1 contract
Indemnification by Purchaser. Subject to Purchaser shall hold harmless and indemnify each of the terms and conditions of this ARTICLE IX, Seller Indemnitees from and after the Closing, the Purchaser shall indemnify and defend the Seller, its Affiliates, and each of their respective employees, directors, officers, stockholders, agents, and representatives (collectively, the “Seller Group”), against, and shall hold compensate and reimburse each of them harmless the Seller Indemnitees for, any Damages that are suffered or incurred by any of the Seller Indemnitees or to which any of the Seller Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any third-party claim) and that arise from, any and all Losses incurred or sustained by the Seller Group based upon as a result of, or arising out ofare connected with:
(a) any inaccuracy in or breach Breach of any of the representations representation or warranties of the warranty made by Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Purchaser pursuant Transactional Agreements, except such Breaches as to this Agreement, as of which SCC or the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date)Company had Knowledge at Closing;
(b) any breach or non-fulfillment Breach of any covenant, agreement, covenant or obligation to be performed by the of Purchaser pursuant to in this Agreement or any other Transaction Document (which shall not include of the Transition Services Agreement)Transactional Agreements;
(c) except for any Liability as to which SCC or the Company had Knowledge at Closing to which neither SCC nor the Company shall have any right to indemnification, any Liability to which any of the Seller Indemnitees may become subject and that arises from or relates to (i) the Purchased Assets subsequent to Closing, (ii) any Assumed Liability, or (iii) the operation of any of the Clubs subsequent to Closing; provided, that such Liability arises solely out of the operations of the Clubs by Purchaser and does not arise from or relate, directly or indirectly, to any Liability occurring or existing on or prior to Closing; or
(d) the Exploitationany Proceeding commenced relating to any Breach, development, manufacture, supply, marketing Liability or distribution matter of the Compound type referred to in clause "(a)", "(b)" or any Product following the Closing. The foregoing indemnity obligations will not apply to "(i) the extent that such Losses arise out of or result from the fraud, gross negligence, and/or willful misconduct of Seller or its Affiliates, and/or any related breach by Seller of its representations, warranties, and/or covenants hereunder, or (ii) Losses for which Seller has an obligation to indemnify the Purchaser Group pursuant to Section 9.02, as to which Losses each Party shall indemnify the other to the extent of its respective liability for such Lossesc)" above.
Appears in 1 contract