CCRT » Topics » INDEMNIFICATION

This excerpt taken from the CCRT 8-K filed Sep 29, 2005.

8.2           Indemnification.

 

(a)           Subject to the provisions of Sections 8.1, 8.3, 8.4 and 8.5, Seller shall indemnify and hold harmless Buyer, its officers, directors and Affiliates, and after the Closing, the Company, its Subsidiaries and their respective officers, directors and Affiliates (other than Seller) (collectively, the “Buyer Indemnified Parties”) from and against all claims, loss, liability, damage, penalty, cost and expense (including reasonable fees and expenses of counsel)

 

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(collectively, “Losses”) that such Buyer Indemnified Party may suffer, sustain or become subject to, arising from or as a result of any misrepresentation by Seller in this Agreement or any breach by Seller of any warranty or covenant or other agreement contained in this Agreement (unless expressly waived in writing by Buyer); provided, however, that with respect to any misrepresentation or breach of any warranty, covenant or other agreement in this Agreement by Seller, in each case solely with respect to the indemnification obligations in this Section 8.2(a) determined without regard to any qualification contained in any such representation, warranty or covenant as to materiality or Material Adverse Effect; and further provided, that Seller shall have no obligation to indemnify any Buyer Indemnified Party for Taxes arising in the Ordinary Course of Business during the period after June 30, 2005 as a result of the operation of the business after June 30, 2005 and ending on the Closing Date and, except as provided in the last sentence of Section 5.11(c), Seller shall have no obligation to indemnify any Buyer Indemnified Party for Losses resulting from the failure of any representation or warranty contained in Section 3.12 to be true and correct for taxable periods or portions thereof beginning after the Closing Date.  For the avoidance of doubt, the parties agree that (i) any Taxes resulting from Merrick Bank’s Section 481 adjustment in accordance with Section 585 of the Code with respect to taxable periods beginning after December 31, 2004 shall be regarded as Taxes arising in the Ordinary Course of Business for the period after June 30, 2005 as a result of the operation of the business after June 30, 2005, and (ii) the assessment of interest and penalties would not constitute Ordinary Course of Business.

 

(b)           Subject to the provisions of Section 8.1, 8.3, 8.4, and 8.5, Seller shall indemnify and hold harmless the Buyer Indemnified Parties from and against 50% of all CSSI Losses in excess of Ten Million Dollars ($10,000,000) that any Buyer Indemnified Party may suffer, sustain or become subject to.  For the avoidance of doubt, it is the intent of the parties that such indemnification obligations shall apply equally to CSSI Losses whether incurred before or after the Closing.

 

(c)           Subject to the provisions of Sections 8.1, 8.3, 8.4 and 8.5, Buyer shall indemnify and hold harmless Seller, its officers, directors and Affiliates (collectively, the “Seller Indemnified Parties”) from and against all Losses that such Seller Indemnified Party may suffer, sustain or become subject to arising from or as a result of any misrepresentation by Buyer in this Agreement or any breach by Buyer of any warranty, covenant or other agreement contained in this Agreement (unless expressly waived in writing by Seller), provided, however that with respect to any misrepresentation or breach of any warranty, covenant or other agreement in this Agreement by Buyer, in each case solely with respect to the indemnification obligations in this  Section 8.2(c) determined without regard to any qualification contained in any such representation, warranty, covenant or other agreement as to materiality or material adverse effect.

 

This excerpt taken from the CCRT 10-Q filed Aug 3, 2005.

INDEMNIFICATION

 

Indemnity.  The Borrower (to the extent of funds available therefor under Section 9.5 of this Agreement) agrees, to indemnify and hold harmless the Administrative Agent, the Collateral Agent, the Backup Servicer, the Lenders, the Agents and each of their Affiliates, and their respective successors and assigns (each an “Indemnified Party”) against any and all claims, damages, losses, liabilities or expenses (including, but not limited to, reasonable attorneys’ fees, court costs and costs of investigation to the extent actually incurred) of any kind or nature whatsoever awarded against or incurred by any of them in connection with this Agreement and the Transaction Documents; excluding, however, as to each Indemnified Party (and the Borrower shall not have any obligation to indemnify any such Person for any liabilities arising from), (a) claims, damages, losses, liabilities or expenses payable to such Indemnified Party to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of any such Indemnified Party or its agent or subcontractor, or (b) taxes imposed on such Indemnified Party or any affiliate thereof, however denominated, and franchise taxes imposed on the net income of any Indemnified Party, in each case imposed: (1) by the United States or any political subdivision or taxing authority thereof or therein; (2) by any jurisdiction under the laws of which such Indemnified Party or its applicable lending office is organized or located, managed or controlled or in which its principal office is located or any political subdivision or taxing authority thereof or therein; or (3) by reason of any connection between the jurisdiction imposing such tax and such Indemnified Party or such lending office other than a connection arising solely from this Agreement or any other Transaction Document or any transaction hereunder or thereunder.  The provisions of this Section 13.7 shall survive the resignation or removal of the Administrative Agent or the Collateral Agent or any successor Administrative Agent or the Collateral Agent and the termination of this Agreement.  If the Borrower has made any indemnity payments pursuant to this Section 17.1 and the Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party shall promptly repay such amounts collected to the Borrower, without interest.

 

Contribution.  If for any reason (other than the exclusions (a) through (b) set forth in Section 17.1) the indemnification provided above in Section 17.1 is unavailable to an Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower agrees to contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party, on the one hand, and the Borrower, on the other hand, but also the relative fault of such Indemnified Party, on the one hand, and the Borrower, on the other hand, as well as any other relevant equitable considerations.

 

EXCERPTS ON THIS PAGE:

8-K
Sep 29, 2005
10-Q
Aug 3, 2005
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