Assumption and Indemnification. (a) Subject to Section 5.03 hereof and the Other Agreements, from and after the Effective Time, Viad shall retain or assume (as between the Viad Group and the MoneyGram Group), as the case may be, and shall indemnify, defend and hold harmless each MoneyGram Individual and each member of the MoneyGram Group, and each of their Representatives and Affiliates, from and against: (i) all Liabilities for Third-Party Claims relating to, arising out of or due to, directly or indirectly, the Distribution or to the service prior to the Effective Time by any MoneyGram Individual as an officer, director or employee of any member of the Viad Group, except as provided in the Employee Benefits Agreement and except to the extent covered by insurance; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification; (ii) all Viad Liabilities; (iii) any material breach by Viad or any member of the Viad Group hereof or of any Other Agreement; (iv) all Indemnifiable Losses of any such MoneyGram Individual, member of the MoneyGram Group, Representative or Affiliate relating to, arising out of or due to, directly or indirectly, the Viad Assets, the Viad Liabilities, the Viad Business, the Former Viad Businesses, the Viad Individuals or the Viad Group’s Representatives, whether relating to or arising out of occurrences prior to, at or after the Effective Time, including any Indemnifiable Losses that Viad may incur as a result of any litigation set forth on Schedule 5.04(b)(iii); and (v) all Liabilities related to or arising out of any untrue statement or alleged untrue statement of a material fact or omission to state a material fact required to be stated in any portion of the Distribution Registration Statement or the Information Statement (or any preliminary or final form thereof or any amendment thereto), or necessary to make the statements therein not misleading, but only to the extent that such material relates solely to Viad or any member of the Viad Group; and (vi) all Viad obligations under Section 3.02(c) hereof. (b) Subject to Section 5.03 hereof and the Other Agreements, and except as specifically provided in Section 5.04(a) hereof, from and after the Effective Time, MoneyGram shall retain or assume (as between the Viad Group and the MoneyGram Group), and shall indemnify, defend and hold harmless each Viad Individual and each member of the Viad Group, and each of their Representatives and Affiliates, from and against: (i) all MoneyGram Liabilities; (ii) any material breach by MoneyGram or any member of the MoneyGram Group hereof or of any Other Agreement; (iii) all Indemnifiable Losses of any such Viad Individual, member of the Viad Group, Representative or Affiliate relating to, arising out of or due to, directly or indirectly, the MoneyGram Assets, the MoneyGram Liabilities, the MoneyGram Business, the Former MoneyGram Businesses, the MoneyGram Individuals or the MoneyGram Group’s Representatives, whether relating to or arising out of occurrences prior to, at or after the Effective Time; (iv) all Liabilities for Third-Party Claims relating to, arising out of or due to, directly or indirectly, the Distribution or to the service prior to the Effective Time by any Viad Individual as an officer, director or employee of any member of the MoneyGram Group, except as provided in the Employee Benefits Agreement and except to the extent covered by insurance; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification; and (v) all Liabilities relating to or arising out of any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated in any portion of the Distribution Registration Statement or the Information Statement (or any preliminary or final form thereof or any amendment thereto), or necessary to make the statements therein not misleading, except to the extent that Viad is liable therefor pursuant to Section 5.04(a)(v) hereof. (c) If an Indemnitee realizes a Tax benefit or detriment by reason of having incurred an Indemnifiable Loss for which such Indemnitee receives an Indemnity Payment from an Indemnifying Party or by reason of receiving an Indemnity Payment, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the Tax benefit (as and when actually realized in cash), or such Indemnifying Party shall pay to such Indemnitee an additional amount equal to the Tax detriment (taking into account any Tax detriment resulting from the receipt of such additional amounts), as the case may be. An Indemnitee shall claim any Tax benefit to which it is entitled by reason of an Indemnifiable Loss. If, following a payment by an Indemnitee or an Indemnifying Party pursuant to this Section 5.04(c) in respect of a Tax benefit or detriment, there is an adjustment to the amount of such Tax benefit or detriment, then each of Viad and MoneyGram shall make appropriate payments to the other, including the payment of interest thereon at the federal statutory rate then in effect, to reflect such adjustments. (d) The amount that an Indemnifying Party is required to pay to any Indemnitee pursuant to this Section 5.04 shall be reduced (including retroactively) by any Insurance Proceeds and other amounts actually recovered by such Indemnitee in reduction of the related Indemnifiable Loss, it being understood and agreed that each party shall use its reasonable best efforts to collect any such proceeds or other amounts to which it or any of its Subsidiaries is entitled, without regard to whether it is the Indemnifying Party hereunder. If an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable Loss and subsequently receives Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the difference between (1) the sum of the amount of such Indemnity Payment and the amount of such Insurance Proceeds or other amounts actually received and (2) the amount of such Indemnifiable Loss, adjusted (at such time as appropriate adjustment can be determined) in each case to reflect any premium adjustment attributable to such claim. Notwithstanding anything to the contrary in this Section 5.04, each party’s indemnity under this Section 5.04 shall include the increased cost and expense of purchasing insurance against future losses, provided and to the extent that such cost and expense is directly attributable to Indemnifiable Losses. (e) If any Indemnity Payment required to be made hereunder or under any Other Agreement is denominated in a currency other than United States dollars, the amount of such payment shall be translated into United States dollars using the Foreign Exchange Rate for such currency determined in accordance with the following rules: (i) with respect to an Indemnifiable Loss arising from payment by a financial institution under a guarantee, comfort letter, letter of credit, foreign exchange contract or similar instrument, the Foreign Exchange Rate for such currency shall be determined as of the date on which such financial institution is reimbursed; (ii) with respect to an Indemnifiable Loss covered by insurance, the Foreign Exchange Rate for such currency shall be the Foreign Exchange Rate employed by the insurance company providing such insurance in settling such Indemnifiable Loss with the Indemnifying Party; and (iii) with respect to an Indemnified Loss not described in clause (i) or (ii) of this Section 5.04(e), the Foreign Exchange Rate for such currency shall be determined as of the date that notice of the claim with respect to such Indemnifiable Loss is given to the Indemnitee.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Moneygram International Inc), Separation and Distribution Agreement (Moneygram International Inc)
Assumption and Indemnification. (a) Subject to Section 5.03 hereof and the Other Agreements4.1(c), from and after the Effective TimeClosing Date, Viad shall retain or assume (as between the Viad Group and the MoneyGram Group), as the case may be, and shall Zapa▇▇ ▇▇▇ll indemnify, defend and hold harmless each MoneyGram Individual and each member of the MoneyGram GroupZAP.▇▇▇ ▇▇▇up, and each of their Representatives and Affiliateseach of the heirs, executors, successors and assigns of any of the foregoing from and against:
(i) against all Liabilities for Third-Party Claims Indemnifiable Losses of any such member or Representative relating to, arising out of or due to, directly or indirectly, the Distribution or to the service prior to the Effective Time by any MoneyGram Individual as an officer, director or employee of any member of the Viad Group, except as provided in the Employee Benefits Agreement and except to the extent covered by insurance; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification;
(ii) all Viad Liabilities;
(iii) any material breach by Viad or any member of the Viad Group hereof or of any Other Agreement;
(iv) all Indemnifiable Losses of any such MoneyGram Individual, member of the MoneyGram Group, Representative or Affiliate relating to, arising out of or due to, directly or indirectly, the Viad Assets, the Viad Liabilities, the Viad Business, the Former Viad Businesses, the Viad Individuals or the Viad Group’s Representatives, whether relating to or arising out of occurrences prior to, at or after the Effective Time, including any Indemnifiable Losses that Viad may incur as a result of any litigation set forth on Schedule 5.04(b)(iii); and
(v) all Liabilities related to or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Rights Offering Document or the omission or alleged omission to state in any of the Rights Offering Documents a material fact required to be stated in any portion of the Distribution Registration Statement or the Information Statement (or any preliminary or final form thereof or any amendment thereto), therein or necessary to make the statements therein not misleading, but only insofar as any such statement or omission was made with respect to (i) a matter of historical fact relating to a member of the extent that such material relates solely to Viad Zapa▇▇ ▇▇▇up or (ii) the present or future intentions of Zapa▇▇ ▇▇ any member of the Viad Group; and
(vi) all Viad obligations under Section 3.02(c) hereofZapa▇▇ ▇▇▇up, in reliance upon and in conformity with information furnished by Zapa▇▇ ▇▇ writing specifically for use in connection with the preparation of the Rights Offering Documents and designated in such writing as having been so furnished.
(b) Subject to Section 5.03 hereof and the Other Agreements, and except as specifically provided in Section 5.04(a) hereof3.1(c), from and after the Effective TimeClosing Date, MoneyGram shall retain or assume (as between the Viad Group and the MoneyGram Group), and shall ZAP.▇▇▇ ▇▇▇ll indemnify, defend and hold harmless each Viad Individual and each member of the Viad GroupZapa▇▇ ▇▇▇up, and each of their Representatives and Affiliateseach of the heirs, executors, successors and assigns of any of the foregoing from and against:
(i) all MoneyGram Liabilities;
(ii) any material breach by MoneyGram or any member of the MoneyGram Group hereof or of any Other Agreement;
(iii) against all Indemnifiable Losses of any such Viad Individual, member of the Viad Group, or Representative or Affiliate relating to, arising out of or due to, directly or indirectly, the MoneyGram Assets, the MoneyGram Liabilities, the MoneyGram Business, the Former MoneyGram Businesses, the MoneyGram Individuals or the MoneyGram Group’s Representatives, whether relating to or arising out of occurrences prior to, at or after the Effective Time;
(iv) all Liabilities for Third-Party Claims relating to, arising out of or due to, directly or indirectly, the Distribution or to the service prior to the Effective Time by any Viad Individual as an officer, director or employee of any member of the MoneyGram Group, except as provided in the Employee Benefits Agreement and except to the extent covered by insurance; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification; and
(v) all Liabilities relating to or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Rights Offering Document or the omission or alleged omission to state in any of the Rights Offering Documents a material fact required to be stated in any portion of the Distribution Registration Statement or the Information Statement (or any preliminary or final form thereof or any amendment thereto), or necessary to make the statements therein not misleading, except to the extent that Viad is liable therefor pursuant to Section 5.04(a)(v) hereof.be
(c) If an Indemnitee realizes a Tax benefit or detriment by reason of having incurred an Indemnifiable Loss for which such Indemnitee receives an Indemnity Payment from an Indemnifying Party or by reason of receiving an Indemnity Payment, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the Tax benefit (as and when actually realized in cash)benefit, or such Indemnifying Party shall pay to such Indemnitee an additional amount equal to the Tax detriment (taking into account any Tax detriment resulting from the receipt of such additional amounts), as the case may be. An If, in the opinion of counsel to an Indemnifying Party reasonably satisfactory in form and substance to the affected Indemnitee, there is a substantial likelihood that the Indemnitee shall claim any will be entitled to a Tax benefit to which it is entitled by reason of an Indemnifiable Loss, the Indemnifying Party promptly shall notify the Indemnitee and the Indemnitee promptly shall take any steps (including the filing of such returns, amended returns or claims for refunds consistent with the claiming of such Tax benefit) that, in the reasonable judgment of the Indemnifying Party, are necessary and appropriate to obtain any such Tax benefit. If, in the opinion of counsel to an Indemnitee reasonably satisfactory in form and substance to the affected Indemnifying Party, there is a substantial likelihood that the Indemnitee will be subjected to a Tax detriment by reason of an Indemnification Payment, the Indemnitee promptly shall notify the Indemnifying Party and the Indemnitee promptly shall take any steps (including the filing of such returns or amended returns or the payment of Tax underpayments consistent with the settlement of any liability for Taxes arising from such Tax detriment) that, in the reasonable judgment of the Indemnitee, are necessary and appropriate to settle any liabilities for Taxes arising from such Tax detriment. If, following a payment by an Indemnitee or an Indemnifying Party pursuant to this Section 5.04(c3.1(c) in respect of a Tax benefit or detriment, there is an adjustment to the amount of such Tax benefit or detriment, then each of Viad and MoneyGram shall Zapa▇▇ ▇▇▇ ZAP.▇▇▇ ▇▇▇ll make appropriate payments to the other, including the payment of interest thereon at the federal statutory rate then in effect, to reflect such adjustmentsadjustment. This Section 3.1(c) shall govern the matters discussed in this Section and shall control over any conflicting language in the Tax Indemnification Agreement.
(d) The amount that which an Indemnifying Party is required to pay to any Indemnitee pursuant to this Section 5.04 3.1 shall be reduced (including retroactively) by any Insurance Proceeds and other amounts actually recovered by such Indemnitee in reduction of the related Indemnifiable Loss, it being understood and agreed that each party shall . Zapa▇▇ ▇▇▇ ZAP.▇▇▇ ▇▇▇ll use its reasonable their respective best efforts to collect any such proceeds Insurance Proceeds or other amounts to which it they or any of its their Subsidiaries is are entitled, without regard to whether it is they are the Indemnifying Party hereunder. If an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable Loss and subsequently receives Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the difference between (1) the sum of the amount of such Indemnity Payment and the amount of such Insurance Proceeds or other amounts actually received and (2) the amount of such Indemnifiable Loss, adjusted (at such time as appropriate adjustment can be determined) in each case to reflect any premium adjustment attributable to such claim. Notwithstanding anything to the contrary in this Section 5.04, each party’s indemnity under this Section 5.04 shall include the increased cost and expense of purchasing insurance against future losses, provided and to the extent that such cost and expense is directly attributable to Indemnifiable Losses.
(e) If any Indemnity Payment required to be made hereunder or under any Other Agreement is denominated in a currency other than United States dollars, the amount of such payment shall be translated into United States dollars using the Foreign Exchange Rate for such currency determined in accordance with the following rules:
(i) with respect to an Indemnifiable Loss arising from payment by a financial institution under a guarantee, comfort letter, letter of credit, foreign exchange contract or similar instrument, the Foreign Exchange Rate for such currency shall be determined as of the date on which such financial institution is reimbursed;
(ii) with respect to an Indemnifiable Loss covered by insurance, the Foreign Exchange Rate for such currency shall be the Foreign Exchange Rate employed by the insurance company providing such insurance in settling such Indemnifiable Loss with the Indemnifying Party; and
(iii) with respect to an Indemnified Loss not described in clause (i) or (ii) of this Section 5.04(e), the Foreign Exchange Rate for such currency shall be determined as of the date that notice of the claim with respect to such Indemnifiable Loss is given to the Indemnitee.Indemnifiable
Appears in 1 contract
Assumption and Indemnification. Buyer shall, on the date of -------------------------------- Closing, agree (and, upon the delivery to Buyer of the Conveyance shall be deemed to have agreed)
(a) Subject to Section 5.03 hereof assume, and to timely pay and perform, all duties, obligations and liabilities relating to the Other Agreements, from and ownership and/or operation of the Assets after the Effective TimeDate (including, Viad shall retain or assume (as between without limitation, those arising under the Viad Group contracts and the MoneyGram Groupagreements described in Section 1(d) above), as the case may beand (b) to release, and shall indemnify, defend indemnify and hold the Seller Group harmless each MoneyGram Individual and each member of the MoneyGram Group, and each of their Representatives and Affiliates, from and against:
against any and all claims, actions, liabilities, losses, damages, costs or expenses (iincluding court costs and attorneys' fees) all Liabilities for Third-Party Claims relating to, of any kind or character arising out of or due to, directly or indirectly, the Distribution or otherwise relating to the service prior to ownership and/or operation of the Assets after the Effective Time by any MoneyGram Individual as an officerDate. In connection with (but not in limitation of) the foregoing, director or employee of any member of the Viad Group, except as provided in the Employee Benefits Agreement it is specifically understood and except to the extent covered by insurance; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification;
(ii) all Viad Liabilities;
(iii) any material breach by Viad or any member of the Viad Group hereof or of any Other Agreement;
(iv) all Indemnifiable Losses of any such MoneyGram Individual, member of the MoneyGram Group, Representative or Affiliate relating to, agreed that matters arising out of or due to, directly or indirectly, the Viad Assets, the Viad Liabilities, the Viad Business, the Former Viad Businesses, the Viad Individuals or the Viad Group’s Representatives, whether otherwise relating to or the ownership and/or operation of the Assets after the Effective Date shall be deemed to include all matters arising out of occurrences prior to, at or after the condition of the Assets on the Effective TimeDate (including, without limitation, within such matters all obligations to properly plug and abandon, or replug and re-abandon, ▇▇▇▇▇ located on the Assets, to restore the surface of the Assets and to comply with, or to bring the Assets into compliance with, Applicable Environmental Laws including all liability and expense for any Indemnifiable Losses restoration, clean-up, disposal, or removal that Viad may incur be incurred as a result of any litigation the existence or discovery of Hazardous Substances or other deleterious substances in, on, or under the Assets, regardless of when the events occurred that give rise to such condition, and the assumptions, and indemnifications by Buyer set forth on Schedule 5.04(b)(iii); and
(v) all Liabilities related to or arising out of any untrue statement or alleged untrue statement of a material fact or omission to state a material fact required to be stated in any portion of the Distribution Registration Statement or the Information Statement (or any preliminary or final form thereof or any amendment thereto)this Section shall expressly cover and include such matters. THE ASSUMPTIONS AND INDEMNIFICATIONS SET FORTH IN THIS SECTION SHALL APPLY WHETHER OR NOT SUCH DUTIES, or necessary to make the statements therein not misleadingOBLIGATIONS, but only to the extent that such material relates solely to Viad or any member of the Viad Group; and
(vi) all Viad obligations under Section 3.02(c) hereof.
(b) Subject to Section 5.03 hereof and the Other AgreementsOR LIABILITIES, and except as specifically provided in Section 5.04(a) hereofOR SUCH CLAIMS, from and after the Effective TimeACTIONS, MoneyGram shall retain or assume (as between the Viad Group and the MoneyGram Group)CAUSES OF ACTION, and shall indemnifyLIABILITIES, defend and hold harmless each Viad Individual and each member of the Viad GroupDAMAGES, and each of their Representatives and AffiliatesLOSSES, from and against:
COSTS, OR EXPENSES ARISE OUT OF (i) all MoneyGram Liabilities;
NEGLIGENCE (INCLUDING CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXPRESSLY NOT INCLUDING SOLE NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF SELLER OR ANY OTHER INDEMNIFIED PARTY, OR (ii) any material breach by MoneyGram or any member of the MoneyGram Group hereof or of any Other Agreement;
(iii) all Indemnifiable Losses of any such Viad Individual, member of the Viad Group, Representative or Affiliate relating to, arising out of or due to, directly or indirectly, the MoneyGram Assets, the MoneyGram Liabilities, the MoneyGram Business, the Former MoneyGram Businesses, the MoneyGram Individuals or the MoneyGram Group’s Representatives, whether relating to or arising out of occurrences prior to, at or after the Effective Time;
(iv) all Liabilities for Third-Party Claims relating to, arising out of or due to, directly or indirectly, the Distribution or to the service prior to the Effective Time by any Viad Individual as an officer, director or employee of any member of the MoneyGram Group, except as provided in the Employee Benefits Agreement and except to the extent covered by insurance; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification; and
(v) all Liabilities relating to or arising out of any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated in any portion of the Distribution Registration Statement or the Information Statement (or any preliminary or final form thereof or any amendment thereto), or necessary to make the statements therein not misleading, except to the extent that Viad is liable therefor pursuant to Section 5.04(a)(v) hereofSTRICT LIABILITY.
(c) If an Indemnitee realizes a Tax benefit or detriment by reason of having incurred an Indemnifiable Loss for which such Indemnitee receives an Indemnity Payment from an Indemnifying Party or by reason of receiving an Indemnity Payment, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the Tax benefit (as and when actually realized in cash), or such Indemnifying Party shall pay to such Indemnitee an additional amount equal to the Tax detriment (taking into account any Tax detriment resulting from the receipt of such additional amounts), as the case may be. An Indemnitee shall claim any Tax benefit to which it is entitled by reason of an Indemnifiable Loss. If, following a payment by an Indemnitee or an Indemnifying Party pursuant to this Section 5.04(c) in respect of a Tax benefit or detriment, there is an adjustment to the amount of such Tax benefit or detriment, then each of Viad and MoneyGram shall make appropriate payments to the other, including the payment of interest thereon at the federal statutory rate then in effect, to reflect such adjustments.
(d) The amount that an Indemnifying Party is required to pay to any Indemnitee pursuant to this Section 5.04 shall be reduced (including retroactively) by any Insurance Proceeds and other amounts actually recovered by such Indemnitee in reduction of the related Indemnifiable Loss, it being understood and agreed that each party shall use its reasonable best efforts to collect any such proceeds or other amounts to which it or any of its Subsidiaries is entitled, without regard to whether it is the Indemnifying Party hereunder. If an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable Loss and subsequently receives Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the difference between (1) the sum of the amount of such Indemnity Payment and the amount of such Insurance Proceeds or other amounts actually received and (2) the amount of such Indemnifiable Loss, adjusted (at such time as appropriate adjustment can be determined) in each case to reflect any premium adjustment attributable to such claim. Notwithstanding anything to the contrary in this Section 5.04, each party’s indemnity under this Section 5.04 shall include the increased cost and expense of purchasing insurance against future losses, provided and to the extent that such cost and expense is directly attributable to Indemnifiable Losses.
(e) If any Indemnity Payment required to be made hereunder or under any Other Agreement is denominated in a currency other than United States dollars, the amount of such payment shall be translated into United States dollars using the Foreign Exchange Rate for such currency determined in accordance with the following rules:
(i) with respect to an Indemnifiable Loss arising from payment by a financial institution under a guarantee, comfort letter, letter of credit, foreign exchange contract or similar instrument, the Foreign Exchange Rate for such currency shall be determined as of the date on which such financial institution is reimbursed;
(ii) with respect to an Indemnifiable Loss covered by insurance, the Foreign Exchange Rate for such currency shall be the Foreign Exchange Rate employed by the insurance company providing such insurance in settling such Indemnifiable Loss with the Indemnifying Party; and
(iii) with respect to an Indemnified Loss not described in clause (i) or (ii) of this Section 5.04(e), the Foreign Exchange Rate for such currency shall be determined as of the date that notice of the claim with respect to such Indemnifiable Loss is given to the Indemnitee.
Appears in 1 contract
Assumption and Indemnification. (a) Subject to Section 5.03 hereof and the Other Agreements4.1(c), from and after the Effective TimeClosing Date, Viad shall retain or assume (as between the Viad Group and the MoneyGram Group), as the case may be, and shall Zapa▇▇ ▇▇▇ll indemnify, defend and hold harmless each MoneyGram Individual and each member of the MoneyGram GroupZAP.▇▇▇ ▇▇▇up, and each of their Representatives and Affiliateseach of the heirs, executors, successors and assigns of any of the foregoing from and against:
(i) against all Liabilities for Third-Party Claims Indemnifiable Losses of any such member or Representative relating to, arising out of or due to, directly or indirectly, the Distribution or to the service prior to the Effective Time by any MoneyGram Individual as an officer, director or employee of any member of the Viad Group, except as provided in the Employee Benefits Agreement and except to the extent covered by insurance; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification;
(ii) all Viad Liabilities;
(iii) any material breach by Viad or any member of the Viad Group hereof or of any Other Agreement;
(iv) all Indemnifiable Losses of any such MoneyGram Individual, member of the MoneyGram Group, Representative or Affiliate relating to, arising out of or due to, directly or indirectly, the Viad Assets, the Viad Liabilities, the Viad Business, the Former Viad Businesses, the Viad Individuals or the Viad Group’s Representatives, whether relating to or arising out of occurrences prior to, at or after the Effective Time, including any Indemnifiable Losses that Viad may incur as a result of any litigation set forth on Schedule 5.04(b)(iii); and
(v) all Liabilities related to or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Rights Offering Document or the omission or alleged omission to state in any of the Rights Offering Documents a material fact required to be stated in any portion of the Distribution Registration Statement or the Information Statement (or any preliminary or final form thereof or any amendment thereto), therein or necessary to make the statements therein not misleading, but only insofar as any such statement or omission was made with respect to (i) a matter of historical fact relating to a member of the extent that such material relates solely to Viad Zapa▇▇ ▇▇▇up or (ii) the present or future intentions of Zapa▇▇ ▇▇ any member of the Viad Group; and
(vi) all Viad obligations under Section 3.02(c) hereofZapa▇▇ ▇▇▇up, in reliance upon and in conformity with information furnished by Zapa▇▇ ▇▇ writing specifically for use in connection with the preparation of the Rights Offering Documents and designated in such writing as having been so furnished.
(b) Subject to Section 5.03 hereof and the Other Agreements, and except as specifically provided in Section 5.04(a) hereof4.1(c), from and after the Effective TimeClosing Date, MoneyGram shall retain or assume (as between the Viad Group and the MoneyGram Group), and shall ZAP.▇▇▇ ▇▇▇ll indemnify, defend and hold harmless each Viad Individual and each member of the Viad GroupZapa▇▇ ▇▇▇up, and each of their Representatives and Affiliateseach of the heirs, executors, successors and assigns of any of the foregoing from and against:
(i) all MoneyGram Liabilities;
(ii) any material breach by MoneyGram or any member of the MoneyGram Group hereof or of any Other Agreement;
(iii) against all Indemnifiable Losses of any such Viad Individual, member of the Viad Group, or Representative or Affiliate relating to, arising out of or due to, directly or indirectly, the MoneyGram Assets, the MoneyGram Liabilities, the MoneyGram Business, the Former MoneyGram Businesses, the MoneyGram Individuals or the MoneyGram Group’s Representatives, whether relating to or arising out of occurrences prior to, at or after the Effective Time;
(iv) all Liabilities for Third-Party Claims relating to, arising out of or due to, directly or indirectly, the Distribution or to the service prior to the Effective Time by any Viad Individual as an officer, director or employee of any member of the MoneyGram Group, except as provided in the Employee Benefits Agreement and except to the extent covered by insurance; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification; and
(v) all Liabilities relating to or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Rights Offering Document or the omission or alleged omission to state in any of the Rights Offering Documents a material fact required to be stated in any portion of the Distribution Registration Statement or the Information Statement (or any preliminary or final form thereof or any amendment thereto), or necessary to make the statements therein not misleading, except to the extent that Viad is liable therefor pursuant to Section 5.04(a)(v) hereof.be
(c) If an Indemnitee realizes a Tax benefit or detriment by reason of having incurred an Indemnifiable Loss for which such Indemnitee receives an Indemnity Payment from an Indemnifying Party or by reason of receiving an Indemnity Payment, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the Tax benefit (as and when actually realized in cash)benefit, or such Indemnifying Party shall pay to such Indemnitee an additional amount equal to the Tax detriment (taking into account any Tax detriment resulting from the receipt of such additional amounts), as the case may be. An If, in the opinion of counsel to an Indemnifying Party reasonably satisfactory in form and substance to the affected Indemnitee, there is a substantial likelihood that the Indemnitee shall claim any will be entitled to a Tax benefit to which it is entitled by reason of an Indemnifiable Loss, the Indemnifying Party promptly shall notify the Indemnitee and the Indemnitee promptly shall take any steps (including the filing of such returns, amended returns or claims for refunds consistent with the claiming of such Tax benefit) that, in the reasonable judgment of the Indemnifying Party, are necessary and appropriate to obtain any such Tax benefit. If, in the opinion of counsel to an Indemnitee reasonably satisfactory in form and substance to the affected Indemnifying Party, there is a substantial likelihood that the Indemnitee will be subjected to a Tax detriment by reason of an Indemnification Payment, the Indemnitee promptly shall notify the Indemnifying Party and the Indemnitee promptly shall take any steps (including the filing of such returns or amended returns or the payment of Tax underpayments consistent with the settlement of any liability for Taxes arising from such Tax detriment) that, in the reasonable judgment of the Indemnitee, are necessary and appropriate to settle any liabilities for Taxes arising from such Tax detriment. If, following a payment by an Indemnitee or an Indemnifying Party pursuant to this Section 5.04(c3.1(c) in respect of a Tax benefit or detriment, there is an adjustment to the amount of such Tax benefit or detriment, then each of Viad and MoneyGram shall Zapa▇▇ ▇▇▇ ZAP.▇▇▇ ▇▇▇ll make appropriate payments to the other, including the payment of interest thereon at the federal statutory rate then in effect, to reflect such adjustmentsadjustment. This Section 3.1(c) shall govern the matters discussed in this Section and shall control over any conflicting language in the Tax Sharing and Indemnification Agreement.
(d) The amount that which an Indemnifying Party is required to pay to any Indemnitee pursuant to this Section 5.04 3.1 shall be reduced (including retroactively) by any Insurance Proceeds and other amounts actually recovered by such Indemnitee in reduction of the related Indemnifiable Loss, it being understood and agreed that each party shall . Zapa▇▇ ▇▇▇ ZAP.▇▇▇ ▇▇▇ll use its reasonable their respective best efforts to collect any such proceeds Insurance Proceeds or other amounts to which it they or any of its their Subsidiaries is are entitled, without regard to whether it is they are the Indemnifying Party hereunder. If an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable Loss and subsequently receives Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the difference between (1) the sum of the amount of such Indemnity Payment and the amount of such Insurance Proceeds or other amounts actually received and (2) the amount of such Indemnifiable Loss, adjusted (at such time as appropriate adjustment can be determined) in each case to reflect any premium adjustment attributable to such claim. Notwithstanding anything to the contrary in this Section 5.04, each party’s indemnity under this Section 5.04 shall include the increased cost and expense of purchasing insurance against future losses, provided and to the extent that such cost and expense is directly attributable to Indemnifiable Losses.
(e) If any Indemnity Payment required to be made hereunder or under any Other Agreement is denominated in a currency other than United States dollars, the amount of such payment shall be translated into United States dollars using the Foreign Exchange Rate for such currency determined in accordance with the following rules:
(i) with respect to an Indemnifiable Loss arising from payment by a financial institution under a guarantee, comfort letter, letter of credit, foreign exchange contract or similar instrument, the Foreign Exchange Rate for such currency shall be determined as of the date on which such financial institution is reimbursed;
(ii) with respect to an Indemnifiable Loss covered by insurance, the Foreign Exchange Rate for such currency shall be the Foreign Exchange Rate employed by the insurance company providing such insurance in settling such Indemnifiable Loss with the Indemnifying Party; and
(iii) with respect to an Indemnified Loss not described in clause (i) or (ii) of this Section 5.04(e), the Foreign Exchange Rate for such currency shall be determined as of the date that notice of the claim with respect to such Indemnifiable Loss is given to the Indemnitee.Indemnifiable
Appears in 1 contract
Sources: Investment and Distribution Agreement (Zap Com Corp)
Assumption and Indemnification. (a) Subject to Section 5.03 hereof and the Other Agreements3.02(c), from and after the Effective TimeClosing Date, Viad Seitel shall retain or assume (as between the Viad Group and the MoneyGram Group), as the case may beassume, and shall indemnify, defend and hold harmless each MoneyGram Individual and each member of the MoneyGram Eagle Group, and each of their Representatives and Affiliateseach of the heirs, executors, successors and assigns of any of the foregoing from and against:
(i) all Liabilities for Third-Party Claims of the Seitel Group under this Separation Agreement or any of the Operative Agreements;
(ii) all Indemnifiable Losses of any such member or Representative relating to, arising out of or due to, directly or indirectly, the Distribution or to the service prior to the Effective Time Seitel Business, any individual employed by any MoneyGram Individual as an officer, director or employee of any member of the Viad Group, except as provided in Seitel Group on the Employee Benefits Agreement and except to the extent covered by insurance; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification;
(ii) all Viad Liabilities;
(iii) any material breach by Viad or any member of the Viad Group hereof or of any Other Agreement;
(iv) all Indemnifiable Losses of any such MoneyGram Individual, member of the MoneyGram Group, Representative or Affiliate relating to, arising out of or due to, directly or indirectly, the Viad Assets, the Viad Liabilities, the Viad Business, the Former Viad Businesses, the Viad Individuals Closing Date or the Viad Seitel Group’s 's Representatives, whether relating to or arising out of occurrences prior to, at on or after the Effective Time, including any Closing Date;
(iii) all Indemnifiable Losses that Viad may incur as a result of any litigation set forth on Schedule 5.04(b)(iii); and
(v) all Liabilities related to such member or Representative relating to, arising out of or due to any untrue statement or alleged untrue statement of a material fact contained in any Offering Document or the omission or alleged omission to state in any of the Offering Documents a material fact required to be stated in any portion of the Distribution Registration Statement or the Information Statement (or any preliminary or final form thereof or any amendment thereto), therein or necessary to make the statements therein not misleading, but only insofar as any such statement or omission was made with respect to (A) a matter of historical fact relating to a member of the Seitel Group or (B) a matter of historical fact relating to a member of the Eagle Group (other than ERI, its subsidiaries, shareholders, officers, directors, employees, assets or business) relating to periods prior to the extent that such material relates solely to Viad Closing Date or (C) the present or future intentions of Seitel or any member of the Viad Seitel Group, which information is or was furnished by Seitel or its Representatives specifically for use in connection with the preparation of the Offering Documents; and
(vi) all Viad obligations under Section 3.02(c) hereof.
(b) Subject to Section 5.03 hereof and the Other Agreements, and except as specifically provided in Section 5.04(a) hereof, from and after the Effective Time, MoneyGram shall retain or assume (as between the Viad Group and the MoneyGram Group), and shall indemnify, defend and hold harmless each Viad Individual and each member of the Viad Group, and each of their Representatives and Affiliates, from and against:
(i) all MoneyGram Liabilities;
(ii) any material breach by MoneyGram or any member of the MoneyGram Group hereof or of any Other Agreement;
(iiiiv) all Indemnifiable Losses of any such Viad Individual, member of the Viad Group, or Representative or Affiliate relating to, arising out of or due to, directly or indirectly, the MoneyGram Assets, the MoneyGram Liabilities, the MoneyGram Business, the Former MoneyGram Businesses, the MoneyGram Individuals or the MoneyGram Group’s Representatives, whether relating to or arising out of occurrences prior to, at or after the Effective Time;
(iv) all Liabilities for Third-Party Claims relating to, arising out of or due to, directly or indirectly, the Distribution or to the service prior to the Effective Time by any Viad Individual as an officer, director or employee of any member of the MoneyGram Group, except as provided in the Employee Benefits Agreement and except to the extent covered by insurance; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification; and
(v) all Liabilities relating to or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Exchange Act report by Seitel or the omission or alleged omission to state in any such report a material fact required to be stated in any portion of the Distribution Registration Statement or the Information Statement (or any preliminary or final form thereof or any amendment thereto), therein or necessary to make the statements therein not misleading, except ; provided that Seitel will not be liable in any such case to the extent that Viad is liable therefor pursuant to Section 5.04(a)(v) hereof.
(c) If an Indemnitee realizes a Tax benefit or detriment by reason of having incurred an Indemnifiable Loss for which such Indemnitee receives an Indemnity Payment from an Indemnifying Party or by reason of receiving an Indemnity Payment, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the Tax benefit (as and when actually realized in cash), or such Indemnifying Party shall pay to such Indemnitee an additional amount equal to the Tax detriment (taking into account any Tax detriment resulting from the receipt of such additional amounts), as the case may be. An Indemnitee shall claim any Tax benefit to which it is entitled by reason of an Indemnifiable Loss. If, following a payment by an Indemnitee or an Indemnifying Party pursuant to this Section 5.04(c) in respect of a Tax benefit or detriment, there is an adjustment to the amount of such Tax benefit or detriment, then each of Viad and MoneyGram shall make appropriate payments to the other, including the payment of interest thereon at the federal statutory rate then in effect, to reflect such adjustments.
(d) The amount that an Indemnifying Party is required to pay to any Indemnitee pursuant to this Section 5.04 shall be reduced (including retroactively) by any Insurance Proceeds and other amounts actually recovered by such Indemnitee in reduction of the related Indemnifiable Loss, it being understood and agreed that each party shall use its reasonable best efforts to collect any such proceeds or other amounts to which it or any of its Subsidiaries is entitled, without regard to whether it is the Indemnifying Party hereunder. If an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable Loss and subsequently receives Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the difference between (1) the sum of the amount of such Indemnity Payment and the amount of such Insurance Proceeds or other amounts actually received and (2) the amount of such Indemnifiable Loss, adjusted (at such time as appropriate adjustment can be determined) in each case to reflect any premium adjustment attributable to such claim. Notwithstanding anything to the contrary in this Section 5.04, each party’s indemnity under this Section 5.04 shall include the increased cost and expense of purchasing insurance against future losses, provided and to the extent that such cost and expense is directly attributable to Indemnifiable Losses.
(e) If any Indemnity Payment required to be made hereunder or under any Other Agreement is denominated in a currency other than United States dollars, the amount of such payment shall be translated into United States dollars using the Foreign Exchange Rate for such currency determined in accordance with the following rules:
(i) with respect to an Indemnifiable Loss arising from payment by a financial institution under a guarantee, comfort letter, letter of credit, foreign exchange contract or similar instrument, the Foreign Exchange Rate for such currency shall be determined as of the date on which such financial institution is reimbursed;
(ii) with respect to an Indemnifiable Loss covered by insurance, the Foreign Exchange Rate for such currency shall be the Foreign Exchange Rate employed by the insurance company providing such insurance in settling such Indemnifiable Loss with the Indemnifying Party; and
(iii) with respect to an Indemnified Loss not described in clause (i) or (ii) of this Section 5.04(e), the Foreign Exchange Rate for such currency shall be determined as of the date that notice of the claim with respect to such Indemnifiable Loss is given to the Indemnitee.such
Appears in 1 contract
Sources: Master Separation Agreement (Eagle Geophysical Inc)
Assumption and Indemnification. The Water Authority hereby ------------------------------ agrees to indemnify and hold, to the extent permitted by law, JWS, the Parent and their respective directors, officers, employees, agents and other Affiliates (acollectively, the "JWS Indemnified Parties") Subject to Section 5.03 hereof harmless against and the Other Agreementsin respect ----------------------- of all losses, from liabilities, damages, costs and expenses (including costs of suit and reasonable attorneys' fees and expenses) (collectively, "Liabilities"), ----------- incurred by any of them on or after the Effective TimeClosing Date arising from, Viad shall retain in connection with or assume (as between relating to the Viad Group and the MoneyGram Group), as the case may be, and shall indemnify, defend and hold harmless each MoneyGram Individual and each member of the MoneyGram Group, and each of their Representatives and Affiliates, from and against:
following: (i) all Liabilities for Third-Party Claims relating to, the operation of the Nassau System and use or ownership of the Acquired Assets on or after the Closing Date; (ii) any Liability arising out of or due to, directly or indirectly, the Distribution or a claim for severance by any Offered Employee with respect to whom an adjustment to the service prior Acquisition Price was made pursuant to the Effective Time by any MoneyGram Individual as an officerSection 1.3(c), director or employee of any member of the Viad Group, except as provided in the Employee Benefits Agreement and except to the extent covered by insuranceof the amount of said adjustment with respect to said Offered Employee; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification;
(ii) all Viad Liabilities;
and (iii) any material misrepresentation, breach by Viad or inaccuracy of any member representation or warranty or failure to comply with any agreement, condition or covenant on the part of the Viad Group hereof Water Authority under this Agreement; provided, however, -------- ------- that as a condition precedent to any indemnification pursuant to this clause (iii), the Water Authority shall have received written notice of a claim from the JWS Indemnified Party pursuant to Section 8.2 within the applicable statute of limitations period, or, with respect to Liabilities relating to any misrepresentation, breach or inaccuracy of any Other Agreement;
representation or warranty, within the period specified in Section 3.3 hereof. (ivb) all Indemnifiable Losses of any such MoneyGram Individual, member of the MoneyGram Group, Representative or Affiliate relating to, arising out of or due to, directly or indirectlyJWS, the Viad AssetsParent and SellCo Corporation, a Delaware corporation ("SellCo"), hereby agree, jointly and severally, to indemnify and hold, to the -------- extent permitted by law, the Viad LiabilitiesWater Authority and its directors, officers, employees, agents and other Affiliates (collectively, the Viad Business, the Former Viad Businesses, the Viad Individuals or the Viad Group’s Representatives, whether relating to or arising out "Water Authority --------------- Indemnified Parties") harmless against and in respect of occurrences prior to, at all Liabilities ------------------- incurred by any of them on or after the Effective TimeClosing Date arising from, including any Indemnifiable Losses in connection with or relating to the following (it being expressly understood by the Water Authority that Viad the indemnification provisions in this Section 8.1(b) shall not cover Liabilities, if any, that may incur arise as a the result of any litigation set forth on Schedule 5.04(b)(iii); and
(v) all Liabilities related to or arising out a modification by the Water Authority in the operation of any untrue statement or alleged untrue statement the Nassau System upon the separation of a material fact or omission to state a material fact required to be stated in any the Queens portion of the Distribution Registration Statement or water distribution system from the Information Statement (or any preliminary or final form thereof or any amendment thereto), or necessary to make the statements therein not misleading, but only to the extent that such material relates solely to Viad or any member of the Viad Group; and
(vi) all Viad obligations under Section 3.02(c) hereof.
(b) Subject to Section 5.03 hereof and the Other Agreements, and except as specifically provided in Section 5.04(a) hereof, from and after the Effective Time, MoneyGram shall retain or assume (as between the Viad Group and the MoneyGram Group), and shall indemnify, defend and hold harmless each Viad Individual and each member of the Viad Group, and each of their Representatives and Affiliates, from and against:
Nassau portion): (i) all MoneyGram Liabilities;
the operation of the Nassau System and use or ownership of the Acquired Assets prior to the Closing Date; (ii) any material breach by MoneyGram or any member liability of the MoneyGram Group hereof or of any Other AgreementJWS;
(iii) all Indemnifiable Losses of any such Viad Individual, member of the Viad Group, Representative or Affiliate relating to, arising out of or due to, directly or indirectly, the MoneyGram Assets, the MoneyGram Liabilities, the MoneyGram Business, the Former MoneyGram Businesses, the MoneyGram Individuals or the MoneyGram Group’s Representatives, whether relating to or arising out of occurrences prior to, at or after the Effective Time;
(iv) all Liabilities for Third-Party Claims relating to, arising out of or due to, directly or indirectly, the Distribution or to the service prior to the Effective Time by any Viad Individual as an officer, director or employee of any member of the MoneyGram Group, except as provided in the Employee Benefits Agreement and except to the extent covered by insurance; provided such indemnification would be permitted by law if such officer, director or employee made a claim for indemnification; and
(v) all Liabilities relating to or arising out of any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated in any portion of the Distribution Registration Statement or the Information Statement (or any preliminary or final form thereof or any amendment thereto), or necessary to make the statements therein not misleading, except to the extent that Viad is liable therefor pursuant to Section 5.04(a)(v) hereof.
(c) If an Indemnitee realizes a Tax benefit or detriment by reason of having incurred an Indemnifiable Loss for which such Indemnitee receives an Indemnity Payment from an Indemnifying Party or by reason of receiving an Indemnity Payment, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the Tax benefit (as and when actually realized in cash), or such Indemnifying Party shall pay to such Indemnitee an additional amount equal to the Tax detriment (taking into account any Tax detriment resulting from the receipt of such additional amounts), as the case may be. An Indemnitee shall claim any Tax benefit to which it is entitled by reason of an Indemnifiable Loss. If, following a payment by an Indemnitee or an Indemnifying Party pursuant to this Section 5.04(c) in respect of a Tax benefit or detriment, there is an adjustment to the amount of such Tax benefit or detriment, then each of Viad and MoneyGram shall make appropriate payments to the other, including the payment of interest thereon at the federal statutory rate then in effect, to reflect such adjustments.
(d) The amount that an Indemnifying Party is required to pay to any Indemnitee pursuant to this Section 5.04 shall be reduced (including retroactively) by any Insurance Proceeds and other amounts actually recovered by such Indemnitee in reduction of the related Indemnifiable Loss, it being understood and agreed that each party shall use its reasonable best efforts to collect any such proceeds or other amounts to which it or any of its Subsidiaries is entitled, without regard to whether it is the Indemnifying Party hereunder. If an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable Loss and subsequently receives Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the difference between (1) the sum of the amount of such Indemnity Payment and the amount of such Insurance Proceeds or other amounts actually received and (2) the amount of such Indemnifiable Loss, adjusted (at such time as appropriate adjustment can be determined) in each case to reflect any premium adjustment attributable to such claim. Notwithstanding anything to the contrary in this Section 5.04, each party’s indemnity under this Section 5.04 shall include the increased cost and expense of purchasing insurance against future losses, provided and to the extent that such cost and expense is directly attributable to Indemnifiable Losses.
(e) If any Indemnity Payment required to be made hereunder or under any Other Agreement is denominated in a currency other than United States dollars, the amount of such payment shall be translated into United States dollars using the Foreign Exchange Rate for such currency determined in accordance with the following rules:
(i) with respect to an Indemnifiable Loss arising from payment by a financial institution under a guarantee, comfort letter, letter of credit, foreign exchange contract or similar instrument, the Foreign Exchange Rate for such currency shall be determined as of the date on which such financial institution is reimbursed;
(ii) with respect to an Indemnifiable Loss covered by insurance, the Foreign Exchange Rate for such currency shall be the Foreign Exchange Rate employed by the insurance company providing such insurance in settling such Indemnifiable Loss with the Indemnifying Party; and
(iii) with respect to an Indemnified Loss not described in clause (i) or (ii) of this Section 5.04(e), the Foreign Exchange Rate for such currency shall be determined as of the date that notice of the claim with respect to such Indemnifiable Loss is given to the Indemnitee.
Appears in 1 contract