Without limiting. Section 7.10(a), after the Effective Time, each of Parent and the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company or Parent and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's or the Surviving Corporation's respective certificate of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
Appears in 3 contracts
Sources: Merger Agreement (American Disposal Services Inc), Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Allied Waste Industries Inc)
Without limiting. Section 7.10(a5.13(a), after the Effective Time, each of Parent and the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company or Parent and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL Delaware Law and the Parent's or the Surviving Corporation's respective certificate of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
Appears in 2 contracts
Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Browning Ferris Industries Inc)
Without limiting. Section 7.10(a), after the Effective TimeObligations of Borrower hereunder, each of Parent Bank agrees to indemnify Administrative Agent and the Surviving Corporation shallits officers, to the fullest extent permitted under applicable lawdirectors, indemnify shareholders, controlling Persons, employees, agents and hold harmlessservants, each present ratably in accordance with their Proportionate Shares for any and former directorall liabilities, officerobligations, employee and agent of the Company or any of its subsidiaries (eachlosses, together with such person's heirsdamages, executors or administratorspenalties, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys fees)actions, judgments, finessuits, lossescosts, claimsexpenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, damages, liabilities and amounts paid incurred by or asserted against Administrative Agent or such Person in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, way relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of this Agreement or pertaining any documents contemplated by or referred to herein or therein or the transactions contemplated by this Agreement. In hereby or thereby or the event enforcement of any of the terms hereof or thereof or of any such actual or threatened claim, action, suit, proceeding or investigation other documents (whether arising before or after the Effective Time), (i) the Company or Parent and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent Borrower has not paid any determination is required such amounts pursuant to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's or the Surviving Corporation's respective certificate of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified PartySection 5.24); provided, however, that neither Parent nor the Surviving Corporation no Bank shall be liable for any settlement effected without its written consent (which consent of the foregoing to the extent they arise from Administrative Agent's, or any such Person's gross negligence or willful misconduct. Administrative Agent or any such Person shall not be unreasonably withheld) and, provided further, that if Parent fully justified in refusing to take or the Surviving Corporation advances to continue to take any action hereunder or pays under any amount to any person under this paragraph (b) and if other Credit Document unless it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to first be indemnified hereunder for to its satisfaction by the Banks against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limitation of the foregoing, each Bank agrees to reimburse Administrative Agent or any portion such Person promptly upon demand for its Proportionate Share of any out-of-pocket expenses (including counsel fees) incurred by Administrative Agent or any such amountPerson in connection with the preparation, execution, administration or enforcement of, or legal advice in respect of rights or responsibilities under, the Operative Documents, to the extent required that Administrative Agent or any such Person is not reimbursed for such expenses by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified PartiesBorrower.
Appears in 2 contracts
Sources: Credit Agreement (Ormat Technologies, Inc.), Credit Agreement (Ormat Technologies, Inc.)
Without limiting. Section 7.10(a5.13(a), after the Effective Time, each of Parent and the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative (collectively, "Costs and Expenses"), arising out of, relating to or in connection with (i) any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and (ii) the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement or the events and developments between Parent and the Company leading up to this Agreement. In addition, Parent shall indemnify and hold harmless each of the Indemnified Parties against any Costs and Expenses arising out of, relating to or in connection with the matters referred to in clause (ii) of the preceding sentence. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company or Parent and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL NRS and the Parent's or the Surviving Corporation's respective certificate articles of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
Appears in 2 contracts
Sources: Merger Agreement (Mirage Resorts Inc), Merger Agreement (MGM Grand Inc)
Without limiting. Section 7.10(athe provisions of paragraph (a), after the Effective Time, each of Time Parent and the Surviving Corporation shall, to the fullest extent permitted under applicable law, will indemnify and hold harmless, harmless each present and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") Party against any costs or expenses (including attorneys reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of, relating of or pertaining to or in connection with any action or omission occurring in his or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving her capacity as an officer, a director or other fiduciary in any entity if such service was at the request or for the benefit officer of the Company) and Company or any of the Merger and the other transactions contemplated by this Agreement or Company Subsidiaries arising out of or pertaining to the transactions contemplated by this AgreementAgreement (except in respect of actions or omissions that constitute bad faith, willful misconduct or a breach of duty of loyalty) for a period of six years after the Effective Time; provided, however, that if, at any time prior to -------- ------- the sixth anniversary of the Effective Time, any Indemnified Party delivers to Parent a written notice asserting a claim for indemnification under this Section 5.15, then the claim asserted in such notice shall survive the sixth anniversary of the Effective Time until such time as such claim is fully and finally resolved. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company or Parent and the Surviving Corporation, as the case may be, shall will pay the reasonable fees and expenses of counsel selected by for the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, Party promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist provided that in the vigorous defense of event that any such matterIndemnified Party is not entitled to indemnification hereunder, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's amounts advanced on his or the Surviving Corporation's respective certificate of incorporation or bylaws, such determination her behalf shall be made by independent legal counsel acceptable remitted to the Parent or the Surviving Corporation, as the case may be, and the Indemnified PartyParent); provided, however, that neither Parent nor the Surviving Corporation shall will not be liable for any settlement -------- ------- effected without its express written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may beconsent. The Indemnified Parties as a group may not retain more than only one law firm (in addition to local counsel) to represent them with respect to each matter any single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Walt Disney Co/)
Without limiting. the provisions of Section 7.10(a6.1(a), after during the period commencing at the Effective Time and ending on the seventh (7th) anniversary of the Effective Time, each of Parent and the Surviving Corporation shall, to the fullest extent permitted by applicable Law applicable to Parent (for purposes of this Section 6.1(b) as if Parent is a Delaware corporation and the relevant Indemnified Person is an officer or director, as the case may be, of a Subsidiary of Parent incorporated under applicable lawthe laws of Delaware), and subject to the limitations set forth in Section 263 of the ICL, to the extent applicable, Parent shall indemnify and hold harmless, harmless each present Indemnified Person from and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or costs, fees and expenses (including attorneys feesreasonable attorneys’ fees and investigation expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, actionproceeding, suit, proceeding investigation or investigationinquiry, whether civil, criminal, administrative or investigative, arising to the extent such claim, proceeding, investigation or inquiry arises directly or indirectly out of, relating of or pertains directly or indirectly to or in connection with (i) any action or omission occurring or alleged to occur action or omission in such Indemnified Person’s capacity as a director, officer, employee or agent of the Company or any of its Subsidiaries or other Affiliates prior to or at the Effective Time Time, or (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in ii) any entity if such service was at the request or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement; provided, however, that if, at any time prior to the seventh (7th) anniversary of the Effective Time, any Indemnified Person delivers to Parent a written notice asserting a claim for indemnification under this Section 6.1(b), then the claim asserted in such notice shall survive the seventh (7th) anniversary of the Effective Time until such time as such claim is fully and finally resolved. In addition, during the period commencing at the Effective Time and ending on the seventh (7th) anniversary of the Effective Time, to the fullest extent permitted by applicable Law applicable to Parent (for purposes of this Section 6.1(b) as if Parent is a Delaware corporation and the relevant Indemnified Person is an officer or director, as the case may be, of a Subsidiary of Parent incorporated under the laws of Delaware), and subject to the limitations set forth in Section 263 of the ICL, to the extent applicable, Parent shall advance, prior to the final disposition of any claim, proceeding, investigation or inquiry for which indemnification may be sought under this Agreement, promptly following request by an Indemnified Person therefor, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified Person in connection with any such claim, proceeding, investigation or inquiry upon receipt of an undertaking by such Indemnified Person to repay such advances if it is ultimately decided in a final, non‑appealable judgment by a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification. In the event of any such actual or threatened claim, actionproceeding, suit, proceeding investigation or investigation (whether arising before or after the Effective Time)inquiry, (i) Parent shall have the Company right to control the defense thereof after the Effective Time (it being understood that, by electing to control the defense thereof, Parent will be deemed to have waived any right to object to the Indemnified Person’s entitlement to indemnification hereunder with respect thereto), (ii) each Indemnified Person shall be entitled to retain his or her own counsel, whether or not Parent and shall elect to control the Surviving Corporationdefense of any such claim, as the case may beproceeding, investigation or inquiry, (iii) Parent shall pay the all reasonable fees and expenses of any counsel selected retained by the an Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving CorporationPerson, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of if (x) Parent has not elected to control the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matterclaim, proceeding, investigation or inquiry or (y) an Indemnified Person has been advised by outside counsel that there would be an actual conflict of interest if the same counsel were to represent such Indemnified Party and Parent or one or more of its Affiliates (and in such case Parent shall not have the right to control of the defense of such Indemnified Person with respect to matters where such conflict exists), and (iiiiv) to the extent any determination is required to be made with respect to whether an no Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's or the Surviving Corporation's respective certificate of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation Person shall be liable for any settlement effected without its his or her prior express written consent (consent, which consent shall not be unreasonably withheldwithheld or delayed. Notwithstanding anything to the contrary set forth in this Section 6.1(b) andor elsewhere in this Agreement, provided further, that if neither Parent or nor any of its Affiliates (including the Surviving Corporation advances Company and its Subsidiaries) shall settle or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all otherwise compromise or any portion of such amount, consent to the extent required by law, such person shall repay such amount entry of any judgment or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them otherwise seek termination with respect to each matter any claim, proceeding, investigation or inquiry for which indemnification may be sought by an Indemnified Person under this Agreement unless there issuch settlement, under applicable standards compromise, consent or termination includes an unconditional release of professional conductall Indemnified Persons from all liability arising out of such claim, a conflict on any significant issue between the positions of any two proceeding, investigation or more Indemnified Partiesinquiry.
Appears in 1 contract
Sources: Merger Agreement
Without limiting. Section 7.10(a6.07(a), from and after the Effective Time, each of Parent and the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such threatened or actual or threatened claim, suit, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee), or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time), (i) the Company or Parent and the Surviving CorporationCorporation shall indemnify and hold harmless, as and to the case may befullest extent permitted by Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect at the Effective Time, shall pay the each such Indemnified Party against any losses, claims, Damages, liabilities, costs, expenses (including reasonable attorney’s fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of any claim, suit, proceeding or investigation of each Indemnified Party to the fullest extent permitted by Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect at the Effective Time upon receipt of any undertaking from such actionIndemnified Party contemplated by applicable Law or such Organizational Documents with respect to repayment of advancement), (ii) the Parent judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. Parent’s and the Surviving Corporation will cooperate Corporation’s obligations under this Section 6.07(b) shall continue in full force and use all reasonable efforts to assist in effect for a period or six (6) years after from the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's or the Surviving Corporation's respective certificate of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; Effective Time provided, however, that neither Parent nor all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion final disposition of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified PartiesClaim.
Appears in 1 contract
Sources: Merger Agreement
Without limiting. Section 7.10(a5.13(a), after the Effective Time, each of Parent and the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, to the fullest extent permitted under applicable law, indemnify indemnify, defend and hold harmless, each present and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative (collectively, "Costs and Expenses"), arising out of, relating to or in connection with (i) any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, including acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the CompanyCompany or any of its affiliates) and (ii) this Agreement, the Merger and or the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement or the events and developments between Parent and the Company leading up to this Agreement. In addition, Parent shall indemnify and hold harmless each of the Indemnified Parties against any Costs and Expenses arising out of, relating to or in connection with the matters referred to in clause (ii) of the preceding sentence. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company or Parent and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL NRS and the Parent's or the Surviving Corporation's respective certificate articles of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldwithheld or delayed) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there ismatter, except to the extent that under applicable standards of professional conduct, conduct such counsel would have a conflict on any significant issue between the positions of any two representing such Indemnified Party or more Indemnified Parties.
Appears in 1 contract
Sources: Merger Agreement (MGM Mirage)
Without limiting. Section 7.10(a)(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible solely on account of the insolvency, after bankruptcy or financial inability to pay of the Effective Timerelated Obligor; or
(iii) any Excluded Taxes; provided, however, that nothing contained in this sentence shall limit the -------- ------- liability of any Seller Party or limit the recourse of the Purchasers to any Seller Party for amounts otherwise specifically provided to be paid by such Seller Party under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, each of Parent Seller Party shall indemnify the Collateral Agent, the Managing Agent and the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Purchasers for Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time Amounts (including, without limitation, acts losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or omissions the Servicer) relating to or resulting from:
(i) any representation or warranty made by such Seller Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such persons serving as an officerPerson pursuant hereto or thereto, director which shall have been false or incorrect when made or deemed made;
(ii) the failure by the Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of the Seller, the Servicer or any Originator to perform its duties, covenants or other fiduciary obligations in accordance with the provisions of this Agreement or any entity if other Transaction Document;
(iv) any products liability, personal injury, damage or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service was related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the request transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event described in Section 9.1(d); --------------
(x) any failure of the Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to give reasonably equivalent value to any Originator under the Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Collateral Agent for the benefit of the CompanyPurchasers, or to transfer to the Collateral Agent for the benefit of the Purchasers, legal and equitable title to, and ownership of, a first priority undivided percentage ownership and/or security interest (to the extent of the Purchaser Interests contemplated hereunder) in the Receivables, the Related Security and the Merger Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(xii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the other transactions contemplated proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xiii) any action or omission by this Agreement any Seller Party which reduces or arising out impairs the rights of the Collateral Agent or pertaining the Purchasers with respect to any Receivable or the transactions contemplated by this Agreement. In the event value of any such actual Receivable;
(xiv) any attempt by any Person (other than a Purchaser) to void any Incremental Purchase or threatened claim, Reinvestment hereunder under statutory provisions or common law or equitable action, suit, proceeding or investigation ; and
(whether arising before or after the Effective Time), (ixv) the Company or Parent and failure of any Receivable included in the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance calculation of the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required Net Receivables Balance as an Eligible Receivable to be made with respect to whether an Indemnified Party's conduct complies with Eligible Receivable at the standards set forth under the DGCL and the Parent's or the Surviving Corporation's respective certificate of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Partiestime so included.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Owens & Minor Inc/Va/)
Without limiting. Section 7.10(a22.1, Tenant shall, with the right to participate in the applicable proceedings, indemnify, protect, defend (with counsel reasonably approved by Landlord) and hold Landlord, and the directors, officers, shareholders, employees and agents of Landlord, harmless from any claims (including, but not limited to, third party claims for personal injury or real or personal property damage), after the Effective Timeor natural resources damage, each of Parent and the Surviving Corporation shallactions, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses administrative proceedings (including attorneys feesinformal proceedings), judgments, damages, punitive damages, penalties, fines, costs, liabilities (including sums paid in settlements of claims), interest or losses, claimsincluding reasonable attorneys' and paralegals' fees and expenses (including any such fees and expenses incurred in enforcing the covenants and obligations of Tenant under this Lease or collecting any sums due hereunder), damagesconsultant fees, liabilities and amounts paid expert fees, together with all other costs and expenses of any kind or nature ("Costs") that arise directly or indirectly from or in settlement connection with the presence, suspected presence, release or threatened release of any Hazardous Substance in or into or at, on, about, under or within the Property, to the extent that such Costs are not attributable to the gross negligence or willful misconduct of Landlord. The indemnification provided in this Section 8.4(b) shall specifically apply to and include claims or actions brought by or on behalf of employees or contractors of Tenant or employees or contractors of Tenant, and Tenant hereby expressly waives any immunity to which Tenant may otherwise be entitled under any industrial or workers' compensation laws. In the event Landlord shall suffer or incur any such Costs, Tenant shall pay to Landlord the total of all such Costs suffered or incurred by Landlord upon demand therefor by Landlord. Without limiting the Generality of the foregoing, the indemnification provided by this Section 8.4(b) shall specifically cover Costs, including capital, operating and maintenance costs, incurred in connection with any actual investigation or threatened claimmonitoring, actionof site conditions, suitany cleanup, proceeding containment, remedial, removal or investigationrestoration work required or performed by any federal, whether civilstate or local governmental agency or political subdivision or performed by any non-governmental entity or person because of the presence, criminalsuspected presence, administrative release or investigativesuspected release of any Hazardous Substance in or into the air, arising out ofsoil, relating groundwater, surface water or soil vapor at, on, about, under or within the Property (or any portion thereof), and any claims of third parties for loss or damage due to or in connection with any action or omission occurring or alleged to occur prior such Hazardous Substance, to the Effective Time (including, without limitation, acts or omissions in connection with extent that such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining Costs are not attributable to the transactions contemplated by this Agreementgross negligence or willful misconduct of Landlord. In the event of addition, such indemnification shall include, but not be limited to, all loss or damage sustained by Landlord or any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), third party to whom Landlord may be liable due to any Hazardous Substance (i) that is present or suspected to be present on, about, under or within the Company Property or Parent and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) that 26 33 migrates, flows, percolates, diffuses or in any way moves onto, into or under the Parent and air, soil, groundwater, surface water or soil vapor at, on, about, under or within the Surviving Corporation will cooperate and use all reasonable efforts Property, irrespective of whether such Hazardous Substance shall be present or suspected to assist in be present on, about, under or within the vigorous defense Property as a result of any such matterrelease, and discharge, disposal, dumping, spilling or leaking (iiiaccidental or otherwise) to onto the extent Property or caused by any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's person or the Surviving Corporation's respective certificate of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Partyentity; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent indemnification obligation arising out of clauses (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (bi) and if it (ii) above shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, apply solely to the extent required by law, that such person shall repay such amount loss or such portion thereof, as damage is not attributable to the case may be, to Parent gross negligence or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards willful misconduct of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified PartiesLandlord.
Appears in 1 contract
Without limiting. the provisions of Section 7.10(a)6.1 hereof, after the Effective Time, each of Parent Tenant covenants and the Surviving Corporation agrees that Tenant shall, to at Tenant’s sole cost and expense, comply at all times with all Requirements governing the fullest extent permitted under applicable lawuse, indemnify and hold harmlessgeneration, each present and former directorstorage, officer, employee and agent treatment and/or disposal of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectivelyHazardous Materials, the "Indemnified Parties") against any costs or expenses (including attorneys fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to presence of which results from or in connection with the act or omission of Tenant, its contractors, licensees, agents, servants or employees if such party has a duty to act pursuant to this Lease, or the breach of this Lease by Tenant. Tenant shall agree to execute, from time to time, at Landlord’s request, affidavits, representations and the like regarding the presence of Hazardous Materials in, on, under or about the Premises, the Building or the Property. Tenant shall indemnify and hold harmless all Landlord Indemnitees from and against any loss, cost, damage, liability or expense (including attorneys’ fees and disbursements through all appeals) arising by reason of any testing, clean up, removal, remediation, detoxification action or omission occurring any other activity required or alleged to occur prior to recommended of any Landlord Indemnitees by any Government Authority by reason of the Effective Time (includingpresence in or about the Building, without limitationthe Premises or the Property of any Hazardous Materials, acts as a result of or omissions in connection with such persons serving as an officerthe act or omission of Tenant, director its contractors, licensees, agents, servants or other fiduciary in any entity employees, if such service was at party had a duty to act pursuant to this Lease, or the request breach of this Lease by Tenant. The foregoing covenants and indemnity shall survive the expiration or for the benefit any termination of the Companythis Lease.
(A) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In Landlord agrees that, in the event of that any asbestos-containing materials (“ACM”) shall be discovered in the Premises during the Term then, provided that such ACM shall not have been introduced into the Premises by Tenant or its agents, contractors or employees, Landlord shall a▇▇▇▇ any such actual ACM, including vinyl asbestos tiles, in accordance with applicable Requirements, at Landlord’s sole cost and expense (such abatement or threatened claim, action, suit, proceeding removal is herein referred to as “ACM Abatement Work”). As used in this Article the terms “a▇▇▇▇” or investigation (whether arising before or after the Effective Time), “abatement” (i) when used with respect to ACM used for fireproofing or other purpose necessary or appropriate for the Company or Parent continued occupancy and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance operation of the final disposition Premises for the uses permitted under this Lease shall include the replacement of such actionremoved or abated asbestos or asbestos-containing materials with suitable substitute materials, and (ii) may include in lieu of removal, the Parent enclosure, encapsulation or other method of remediating such ACM in those instances where removal is unduly burdensome, unduly expensive or not consistent with commonly accepted and reasonable ACM abatement/remediation procedures. If Tenant, or any contractor or consultant or employee of Tenant, interferes with or delays the Surviving Corporation will cooperate progress or completion of ACM Abatement Work by, among other things: (i) failing to timely comment upon any plans and use all reasonable efforts specifications relating to assist ACM Abatement Work, or (ii) requesting changes in the vigorous defense of any such matterplans and specifications relating to ACM Abatement Work, and (iii) denying or providing inadequate access to Landlord and its contractors or (iv) otherwise interfering with or delaying Landlord’s performance (except to the extent any determination such interference or delay is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's or the Surviving Corporation's respective certificate de minimis) of incorporation or bylawssuch work, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation then Tenant shall be liable for any settlement effected without its written consent (which consent and shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder reimburse Landlord for all additional fees, costs and expenses paid or any portion of incurred by Landlord and for all damages resulting from such amountdelay, within thirty (30) days after being billed therefor and, to the extent required that any such delay results in a delay in the occurrence of the Commencement Date, the Commencement Date shall be accelerated by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions aggregate period of any two such delay.
(B) Landlord shall restore any areas of the Premises that have been damaged by the ACM Abatement Work, and Fixed Rent shall a▇▇▇▇ during the period Tenant cannot and is not using the Premises or more Indemnified Partiesportion thereof because of Landlord’s ACM Abatement Work in proportion to the area of the Premises not used by Tenant. Any encapsulation of ACM located within the Premises in connection with the performance of Landlord’s ACM Abatement Work shall not result in a reduction in the cubic area of the Premises beyond a de minimis amount.
Appears in 1 contract
Sources: Lease Agreement (Coty Inc /)
Without limiting. the provisions of Section 7.10(a6.09(a), from and after the Effective Time, each of Parent shall and shall cause the Surviving Corporation shallto, in each case, to the fullest extent permitted under by applicable lawLaw: (i) indemnify, indemnify defend and hold harmless, to the fullest extent permitted by applicable Law, each present Company Indemnified Party from and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys reasonable attorneys' fees), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement (including, in each case, any interest or assessments thereon) in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with extent such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before arises out of or after pertains to any action or omission or alleged action or omission in such Company Indemnified Party's capacity as a director, officer or employee of the Company or any of its Subsidiaries prior to the Effective Time), (i) the Company or Parent ; and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) pay the Parent and the Surviving Corporation will cooperate and use all expenses (including reasonable efforts to assist in the vigorous defense attorneys' fees) of any Company Indemnified Party incurred in connection with any such matterclaim, and (iii) action, suit, proceeding or investigation upon receipt of an undertaking by or on behalf of such Company Indemnified Party to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's or the Surviving Corporation's respective certificate of incorporation or bylaws, repay such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter ultimately be finally determined by a court of competent jurisdiction that such person was Company Indemnified Party is not entitled to be indemnified hereunder for all or any portion of such amountindemnified, in each case, to the extent required that such Persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by law, such person shall repay such amount the Company or such portion thereof, as any of its Subsidiaries pursuant to the case may be, to Parent Organizational Documents of the Company or the Surviving CorporationOrganizational Documents for each Subsidiary of the Company or applicable Law. Notwithstanding the foregoing, as the case may be. The Company Indemnified Parties as a group may not retain more than only one law firm to represent them (and local counsel in each necessary jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Company Indemnified Parties.
Appears in 1 contract
Sources: Merger Agreement (Joy Global Inc)
Without limiting. Section 7.10(a5.08(a), after the Effective Time, each of Parent DT and the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee and agent of the Company Voicestream or any of its subsidiaries Subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified PartyINDEMNIFIED PARTY" and collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs or expenses (including attorneys attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the CompanyVoicestream) and or arising out of or pertaining to this Agreement, the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to and the transactions contemplated by this AgreementDT Financing Agreements. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company or Parent DT and the Surviving Corporation, as the case may be, shall pay the reasonable fees and out of pocket expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent DT and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable out of pocket expenses in advance of the final disposition of such action, (ii) the Parent DT and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL Delaware Law and the ParentDT's or the Surviving Corporation's respective certificate articles of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent DT or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent DT nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be). The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
Appears in 1 contract
Without limiting. Section 7.10(a)any other rights that the Collateral Agent, after the Effective TimeLenders, each of Parent and the Surviving Corporation shallDeal Agent, to the fullest extent permitted under applicable lawLiquidity Agent, indemnify and hold harmless, each present and former or any director, officer, employee or agent or incorporator of such party (each an "Indemnified Party") may have hereunder or under applicable ----------------- law, the Borrower hereby agrees to indemnify each Indemnified Party from and agent against any and all claims, losses, liabilities, obligations, damages, penalties, actions, judgments, suits, and related costs and expenses of any nature whatsoever, including reasonable attorneys' fees and disbursements (all of the Company foregoing being collectively referred to as "Indemnified Amounts"), which ------------------- may be imposed on, incurred by or asserted against an Indemnified Party in any way arising out of or relating to (i) any breach of the Borrower's obligations under any Basic Document, (ii) the financing or the pledge of the Transferred Receivables, or (iii) any Receivable or any Contract, excluding, however, Indemnified Amounts to the extent resulting solely from gross negligence or willful misconduct on the part of such Indemnified Party. Without limiting or being limited by the foregoing, the Borrower shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from:
(A) reliance on any representation or warranty made or deemed made by the Borrower (or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties"officers) against any costs or expenses (including attorneys fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to under or in connection with any action Basic Document or omission occurring any report or alleged other information delivered by the Borrower pursuant hereto which shall have been incorrect in any material respect when made or deemed made or delivered;
(B) the failure by the Borrower to occur prior to the Effective Time (includingcomply with any term, without limitation, acts provision or omissions covenant contained in any Basic Document or any agreement executed by it in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of with any applicable law, rule or pertaining to the transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company or Parent and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made regulation with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's any Transferred Receivable or its related Contract, or the Surviving Corporation's respective certificate nonconformity of incorporation any Transferred Receivable or bylawsits related Contract with any such applicable law, rule or regulation; or
(C) the failure to vest and maintain vested in the Borrower legal and equitable title to and ownership of the Receivables that are, or are purported to be, Transferred Receivables, together with all Collections in respect thereof, free and clear of any Adverse Claim or Restrictions on Transferability (except as permitted hereunder) whether existing at the time of the purchase of such determination shall be made by independent legal counsel acceptable Receivable or at any time thereafter, and to maintain or transfer to the Parent or the Surviving CorporationCollateral Agent a first priority, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Partiesperfected security interest therein.
Appears in 1 contract
Sources: Receivables Funding and Servicing Agreement (Consumer Portfolio Services Inc)
Without limiting. the provisions of Section 7.10(a5.5(a), after during the period commencing as of the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, each of Parent and the Surviving Corporation shall, will to the fullest extent permitted under applicable law, Law: (i) indemnify and hold harmless, harmless each present Indemnitee against and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against from any costs or expenses (including attorneys attorneys’ fees), judgments, inquiries, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with extent such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation arises out of or pertains to: (whether arising before x) any action or after the Effective Time), (i) omission or alleged action or omission in such Indemnitee’s capacity as a director or officer of the Company or Parent any of its subsidiaries; or (y) the Offer, the Merger, this Agreement and the Surviving Corporation, as the case may be, shall any transactions contemplated hereby; and (ii) pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of any such claim, action, suit, proceeding or investigation the expenses (iiincluding attorneys’ fees) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any Indemnitee upon receipt of an undertaking by or on behalf of such matter, and (iii) Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified. Notwithstanding anything to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's contrary contained in this Section 5.5(b) or the Surviving Corporation's respective certificate of incorporation or bylawselsewhere in this Agreement, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent and Parent shall not be unreasonably withheld) and, provided further, that if Parent or cause the Surviving Corporation advances not to) settle or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all compromise or any portion of such amount, consent to the extent required by law, such person shall repay such amount entry of any judgment or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them otherwise seek termination with respect to each matter any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Section 5.5(b) unless there issuch settlement, under applicable standards compromise, consent or termination includes an unconditional release of professional conductthe Indemnitees who are subject to such claim, a conflict on action, suit, proceeding or investigation from all liability arising out of such claim, action, suit, proceeding or investigation, and does not include an admission of fault or wrongdoing by any significant issue between the positions of any two or more Indemnified PartiesIndemnitee.
Appears in 1 contract
Sources: Merger Agreement
Without limiting. Section 7.10(a6.7(a), but without duplication or any right or benefit thereunder, after the Effective Time, each of Parent VLI and the Surviving Corporation Partnership shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, officer or employee and agent of the Company KPP GP or KPP or any of its subsidiaries Subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified PartyINDEMNIFIED PARTY" and collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") ), in their capacity as such, against any costs or expenses (including attorneys reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with (x) any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director director, manager, partner, employee or other fiduciary in any entity if such service was at the request of KPP GP or for the benefit of the CompanyKPP) and (y) the KPP Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company KPP GP or Parent KPP or VLI and the Surviving CorporationPartnership, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent VLI and the Surviving CorporationPartnership, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, subject to the receipt of any undertaking (which need not be secured) by or on behalf of the Indemnified Party to repay such amount if it shall be determined that such Person is not entitled to be indemnified pursuant to the KPP GP LLC Agreement or the KPP Partnership Agreement, as applicable, (ii) the Parent VLI and the Surviving Corporation Partnership will cooperate and use all reasonable efforts to assist in and cooperate in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL Delaware law and the ParentVLI's or the Surviving CorporationPartnership's respective certificate of incorporation or bylawspartnership agreement, such determination shall be made by independent legal counsel acceptable to the Parent VLI or the Surviving CorporationPartnership, as the case may be, and the Indemnified Party; provided, however, that neither Parent VLI nor the Surviving Corporation Partnership shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent VLI or the Surviving Corporation Partnership advances or pays any amount to any person Person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person Person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent VLI or the Surviving CorporationPartnership, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict requiring separate representation on any significant issue between the positions of any two or more Indemnified Parties.
Appears in 1 contract
Sources: Merger Agreement (Valero L P)
Without limiting. Section 7.10(a6.6(a), but without duplication of any right or benefit thereunder, after the KSL Effective Time, each of Parent VLI and the Surviving Corporation LLC shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, officer and employee and agent of the Company KSL or any of its subsidiaries Subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified PartyINDEMNIFIED PARTY" and collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") ), in their capacity as such, against any costs or expenses (including attorneys reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with (x) any action or omission occurring or alleged to occur prior to the KSL Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director director, manager, partner, employee or other fiduciary in any entity if such service was at the request or for the benefit of the CompanyKSL) and (y) the KSL Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company KSL or Parent VLI and the Surviving CorporationLLC, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent VLI and the Surviving CorporationLLC, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, subject to the receipt of any undertaking (which need not be secured) by or on behalf of the Indemnified Party to repay such amount if it shall be determined that such Person is not entitled to be indemnified pursuant to the KSL LLC Agreement, (ii) the Parent VLI and the Surviving Corporation LLC will cooperate and use all reasonable efforts to assist in and cooperate in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL Delaware law and the ParentVLI's or the Surviving CorporationLLC's respective certificate of incorporation or bylawspartnership agreement, such determination shall be made by independent legal counsel acceptable to the Parent VLI or the Surviving CorporationLLC, as the case may be, and the Indemnified Party; provided, however, that neither Parent VLI nor the Surviving Corporation LLC shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent VLI or the Surviving Corporation LLC advances or pays any amount to any person Person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person Person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent VLI or the Surviving CorporationLLC, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict requiring separate representation on any significant issue between the positions of any two or more Indemnified Parties.
Appears in 1 contract
Sources: Merger Agreement (Valero L P)
Without limiting. this Section 7.10(a5.5, but subject to the remainder of this Section 5.5(c), after the Effective Time, each of Parent and the Surviving Corporation Company shall take, or cause to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to resolve, avoid or eliminate each and every impediment under any applicable Competition Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as promptly as practicable (and in any event, no later than the Extended Outside Date), including using their reasonable best efforts to lift or rescind any injunction or restraining order or other order of any Governmental Entity prohibiting the parties from consummating the Transactions in accordance with the terms of this Agreement, including reasonably pursuing administrative and judicial appeal up to the Outside Date; provided, however, that nothing in this Section 5.5 or anything else in this Agreement shall require Parent or any of its Subsidiaries to (and neither the Company nor any of its Subsidiaries shall, or shall offer or agree to, do any of the following without Parent’s prior written consent): (i) (A) sell, divest or discontinue any portion of the assets, liabilities, activities, businesses or operations of Parent or its Subsidiaries or the Company or its Subsidiaries, or (B) accept any other remedy with respect to the fullest extent permitted under applicable lawany assets, indemnify and hold harmlessliabilities, each present and former directoractivities, officer, employee and agent businesses or operations of Parent or any of its Subsidiaries or the Company or any of its subsidiaries Subsidiaries, if in the case of clauses (each, together with such person's heirs, executors or administrators, an "Indemnified Party" A) and collectively(B), the "Indemnified Parties") against cumulative effect of any costs such divestitures and remedies would adversely impact projected EBITDA for the first year after Closing from Parent’s or expenses any of its Subsidiaries’ (including attorneys fees)at or after the Closing, judgmentsthe Company’s and any of its Retained Subsidiaries’) operations as set forth in Section 5.5(c) of the Company Disclosure Schedule by more than $25,000,000 annually; or (ii) require Parent or any of its Subsidiaries (including at or after the Closing, finesthe Company and any of its Retained Subsidiaries) to provide prior notice to, lossesor to obtain prior approval from any Governmental Entity unless such requirement to provide prior notice to, claimsor to obtain prior approval from, damages, liabilities any Governmental Entity would be immaterial to Parent and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time its Subsidiaries (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective TimeClosing, the Company and its Retained Subsidiaries), taken as a whole (any of the actions described in the preceding clauses (i) and (ii), a “Burdensome Condition”). Notwithstanding the foregoing, at the written request of Parent, the Company shall, and shall cause its Subsidiaries to, agree to take any action that would constitute a Burdensome Condition so long as, in the case of actions described in clause (i) the Company or Parent and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition definition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's or the Surviving Corporation's respective certificate of incorporation or bylawsBurdensome Condition, such determination shall be made by independent legal counsel acceptable to action is conditioned upon the Parent or occurrence of the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified PartiesClosing.
Appears in 1 contract
Without limiting. Section 7.10(a6.11(a), after the Effective TimeClosing Date, each of Parent Buyer and the Surviving Corporation Company shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time Closing Date (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and the Merger Acquisition and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, suit proceeding or investigation (whether arising before or after the Effective TimeClosing Date), (i) the Company or Parent and the Surviving CorporationBuyer, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving CorporationBuyer, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Parent Buyer and the Surviving Corporation Company will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL Delaware Law and the ParentBuyer's or the Surviving CorporationCompany's respective certificate of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent Buyer or the Surviving CorporationCompany, as the case may be, and the Indemnified Party; provided, however, that neither Parent Buyer nor the Surviving Corporation Company shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent Buyer or the Surviving Corporation Company advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent Buyer or the Surviving CorporationCompany, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
Appears in 1 contract
Without limiting. Section 7.10(a8.4(a), after the Effective Time, each of Parent and the Surviving Corporation shall, to the fullest extent permitted not prohibited under applicable law, indemnify and hold harmless, each present and former director, officer, employee and agent guarantee all obligations of the Company or any Surviving Corporation for indemnification and advancement of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" expenses pursuant to the certificate of incorporation and collectively, bylaws of the "Indemnified Parties") against any costs or expenses (including attorneys fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement Surviving Corporation in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) Company and the Offer, the Merger and or the other transactions contemplated by this Agreement Agreement) or arising out of or pertaining to the Offer, the Merger or the other transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company or Parent and the Surviving Corporation, as the case may be, Corporation shall jointly and severally pay the reasonable fees and expenses of counsel selected by the persons entitled to indemnification and advancement of expenses pursuant to the certificate of incorporation or bylaws of the Surviving Corporation (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties"), which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's or the Surviving Corporation's respective certificate of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, Corporation and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
Appears in 1 contract
Without limiting. the generality of the undertakings and subsections (a) and (b) of this Section 7.10(a)6.03, after the Effective TimeCompany, each of Parent and Merger Sub agree to take or cause to be taken the Surviving Corporation shallfollowing actions: (i) provide as promptly as practicable information and documents requested by any Governmental Antitrust Authority necessary, proper or advisable to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee and agent permit consummation of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company or Parent and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) take, or cause to be taken, all actions necessary, proper or advisable to obtain the approval for consummation of the transactions contemplated by this Agreement by any Governmental Antitrust Authority, which actions shall include each of Parent and Merger Sub's agreement to (x) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of, any entities, assets or facilities of the Surviving Corporation will cooperate Company or a Company Subsidiary or any entity, facility or asset of Parent or its Affiliates, (y) terminate, amend or assign such existing relationships and use all reasonable efforts contractual rights and obligations (other than termination that would result in a breach of a contractual obligation to assist a third party) and (z) amend, assign or terminate such existing licenses or other agreements (other than a termination that would result in a breach of a license or such other agreement with a third party) and to enter into such new licenses or other agreements (and, in each case, to enter into agreements with the vigorous defense of relevant Governmental Antitrust Authority giving effect thereto) in each case with respect to the foregoing clauses (x), (y) or (z) if such action is necessary or advisable or as may be required by any Governmental Antitrust Authority, PROVIDED that any such matter, action contemplated by this clause (ii) shall not be required to be effective prior to the Closing and (iii) to take promptly, in the extent event that any determination permanent or preliminary injunction or other order is required entered or becomes reasonably foreseeable to be made with respect to whether an Indemnified Party's conduct complies entered in any proceeding that would make consummation of the transactions contemplated by this Agreement in accordance with the standards set forth under terms of this Agreement unlawful or that would prevent or delay consummation of any such transaction, any and all steps (including the DGCL and appeal thereof, the Parent's posting of a bond or the Surviving Corporation's respective certificate taking of incorporation the steps contemplated by clause (ii) of this subsection (c)) necessary to vacate, modify or bylaws, suspend such determination shall be made injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may beAgreement. The Indemnified Parties as a group may not retain more than one law firm Company, Parent and Merger Sub agree to represent them with respect to each matter unless there isoffer the other parties, under applicable standards of professional conductif possible, a conflict on any significant issue between the positions of any two or more Indemnified Partiesreasonable opportunity to participate in all telephonic conferences and all meetings with a Governmental Antitrust Authority.
Appears in 1 contract
Without limiting. Section 7.10(a)the generality of the foregoing indemnification, after Borrower shall indemnify the Effective Time, each of Parent Agent and the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee and agent of the Company or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Lenders for Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time Amounts (including, without limitation, acts losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Borrower or omissions the Servicer) relating to or resulting from:
(i) any representation or warranty made by any Loan Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such persons serving as an officerPerson pursuant hereto or thereto, director which shall have been false or incorrect when made or deemed made;
(ii) the failure by Borrower, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of Borrower, the Servicer or any Originator to perform its duties, covenants or other fiduciary obligations in accordance with the provisions of this Agreement or any entity if other Transaction Document;
(iv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service was related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the request transactions contemplated hereby, the use of the proceeds of any Advance, the Collateral or any other investigation, litigation or proceeding relating to Borrower, the Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event described in Section 9.1(g);
(x) any failure of Borrower to acquire and maintain legal and equitable title to, and ownership of any of the Collateral from the applicable Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Borrower to give reasonably equivalent value to any Originator under the Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Agent for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement Lenders, or arising out of or pertaining to transfer to the transactions contemplated by this Agreement. In Agent for the event benefit of the Secured Parties, a valid first priority perfected security interests in the Collateral, free and clear of any such actual or threatened claim, action, suit, proceeding or investigation Adverse Claim (whether arising before or after except as created by the Effective TimeTransaction Documents), ;
(ixii) the Company failure to have filed, or Parent and any delay in filing, financing statements or other similar instruments or documents under the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense UCC of any such matter, and (iii) to the extent any determination is required to be made applicable jurisdiction or other applicable laws with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's or the Surviving Corporation's respective certificate of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may beany Collateral, and the Indemnified Party; providedproceeds thereof, however, that neither Parent nor whether at the Surviving Corporation shall be liable for time of any settlement effected without its written consent Advance or at any subsequent time;
(xiii) any action or omission by any Loan Party which consent shall not be unreasonably withheld) and, provided further, that if Parent reduces or impairs the rights of the Agent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them Lenders with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between Collateral or the positions value of any two Collateral;
(xiv) any attempt by any Person to void any Advance or more Indemnified Partiesthe Agent's security interest in the Collateral under statutory provisions or common law or equitable action; and
(xv) the failure of any Receivable included in the calculation of the Net Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included.
Appears in 1 contract
Without limiting. Section 7.10(a8.9(a), after the Effective Time, each of Parent USA Waste and the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, harmless each present and former director, officer, employee and agent of the Company AWS or any of its subsidiaries (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to to, or in connection with any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with any such persons person serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the CompanyAWS) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement or the Distribution Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company AWS or Parent USA Waste and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent USA Waste and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such claim, action, suit, proceeding or investigation, (ii) the Parent USA Waste and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL OGCL and the ParentUSA Waste's or the Surviving Corporation's respective certificate of incorporation charters or bylawsby-laws, such determination shall be made by independent legal counsel acceptable to the Parent USA Waste or the Surviving Corporation, as the case may be, and the applicable Indemnified Party; provided, however, that neither Parent USA Waste nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) ); and, provided provided, further, that if Parent USA Waste or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent USA Waste or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
Appears in 1 contract
Without limiting. Section 7.10(a)SECTION 9.21, if the Lenders permit the creation or acquisition of any new Subsidiary, at the time any Person becomes a Subsidiary of the Parent Guarantor, the Parent Guarantor shall so notify the Agent and promptly thereafter (but in any event within 30 days after the Effective Time, each of Parent and the Surviving Corporation shall, date thereof) shall (i) cause such Person to become a party to this Agreement in a manner acceptable to the fullest extent permitted under applicable lawAgent, indemnify and hold harmless, each present and former director, officer, employee and agent (ii) cause all of the Company or any Capital Stock of such Person to be delivered to the Agent (together with undated stock powers signed in blank) and pledged to the Agent pursuant to an appropriate Pledge Agreement in substantially the form of the Pledge Agreement and otherwise in a form reasonably acceptable to the Agent, (iii) pledge all of its subsidiaries assets to the Lenders pursuant to this Agreement and such other security agreements consistent with this Agreement as may be requested by the Agent, including a separate collateral assignment of any Material License Agreements to which it is a party, (eachiv) if such Person has any Subsidiaries, (y) deliver all of the Capital Stock of such Subsidiaries (together with undated stock powers signed in blank) to the Agent and (z) execute a pledge agreement in substantially the form of the Pledge Agreement and otherwise in a form reasonably acceptable to the Agent, (v) if such person's heirsPerson owns any Real Estate, executors execute any and all necessary mortgages, deeds of trust, deeds to secure debt or administratorsother appropriate real estate collateral documentation in a form reasonably acceptable to the Agent, an "Indemnified Party" and collectively, (vi) deliver such other documentation as the "Indemnified Parties") against any costs or expenses (including attorneys fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement Agent may reasonably request in connection with any actual or threatened claimthe foregoing, actionincluding appropriate UCC-1 financing statements, suitreal estate title insurance policies, proceeding or investigationenvironmental reports, whether civilcertified resolutions and other organizational and authorizing documents of such Person and favorable opinions of counsel to such Person (which shall cover, criminalamong other things, administrative or investigativethe legality, arising out ofvalidity, relating binding effect and enforceability of the documentation referred to or above subject to standard assumptions, qualifications and limitations that are customary in connection with any action or omission occurring or alleged to occur prior legal opinions of such type), all in form, content and scope reasonably satisfactory to the Effective Time Agents; PROVIDED, HOWEVER, that the requirement of clause (including, without limitation, acts ii) shall apply only to all Capital Stock held directly or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request indirectly by or for the benefit of the Company) and the Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Company or Parent and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent and the Surviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Parent and the Surviving Corporation will cooperate and use all reasonable efforts to assist in the vigorous defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Parent's or the Surviving Corporation's respective certificate of incorporation or bylaws, such determination shall be made by independent legal counsel acceptable to the Parent or the Surviving Corporation, as the case may be, and the Indemnified Party; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and, provided further, that if Parent or the Surviving Corporation advances or pays any amount to any person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such person was not entitled to be indemnified hereunder for all Guarantor or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to Parent or the Surviving Corporation, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Partiesits Subsidiaries.
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Riddell Sports Inc)