Common use of Agreement to Indemnify by Seller Clause in Contracts

Agreement to Indemnify by Seller. Subject to the terms and conditions of Sections 9.4 and 9.5 hereof, the Seller hereby agrees to indemnify and save the Buyer, the Surviving Companies and their respective shareholders, officers, directors, employees, successors and assigns (each, a "BUYER INDEMNITEE") harmless from and against, for and in respect of, any and all damages, losses, obligations, liabilities, demands, judgments, injuries, penalties, claims, actions or causes of action, encumbrances, costs, and expenses (including, without limitation, reasonable attorneys' fees and expert witness fees), suffered, sustained, incurred or required to be paid by any Buyer Indemnitee (collectively, "BUYER'S DAMAGES") arising out of, based upon, in connection with, or as a result of: (a) the untruth, inaccuracy or breach of any representation and warranty of the Seller contained in or made pursuant to this Agreement, including in any Schedule or certificate delivered hereunder or in connection herewith, excluding any breach of representation and warranty contained in Section 3.19; PROVIDED, HOWEVER, that with respect to the foregoing indemnification obligation of the Seller contained in this paragraph (a) and the indemnification obligation of the Seller contained in paragraph (b) immediately below, the Seller shall not have any indemnification obligation until (and only to the extent that) Buyer's Damages in respect of all claims for indemnity pursuant to this paragraph (a) and said paragraph (b) shall exceed a cumulative aggregate total of $150,000; (b) the untruth, inaccuracy or breach of any representation and warranty of the Seller contained in or made pursuant to Section 3.19, including in any Schedule or certificate delivered hereunder in connection therewith; (c) the breach or nonfulfillment of any covenant or agreement of the Seller contained in this Agreement or in any other agreement, document or instrument delivered hereunder or pursuant hereto; (d) any loss of life, injury to persons or property, or damage to natural resources caused by the actual, alleged, or threatened release, storage, transportation, treatment or generation, of Hazardous Materials generated, stored, used, disposed of, treated, handled or shipped by the Companies on or before the Closing Date; (e) any cleanup of Hazardous Materials released, disposed of or discharged: (i) on, beneath or adjacent to the Real Property prior to or on the date of the Closing; or (ii) at any other location if such substances were generated, used, stored, treated, transported or released by the Companies prior to or on the Closing Date; PROVIDED, HOWEVER, such cleanup obligation shall only be to the level required of an applicable governmental agency or as COMMERCIALLY reasonably necessary to satisfy the requirements of a lender to or prospective purchaser of the Real Property. (f) all known or unknown environmental liabilities and claims of the Companies or arising out of the ownership the Shares prior to the Closing, including, without limitation, the presence, release or threatened release of Hazardous Materials and any liabilities or obligations arising under any Environmental Law, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as amended; (g) any and all costs of installing pollution control equipment or other equipment to bring any of the Real Property into compliance with any Environmental Law if such equipment is installed because any of the Real Property was not in compliance with any Environmental Laws as of the date of the Closing; or (h) all liabilities of any of the Companies for Taxes arising out of the distribution of the Hartsville operations, except to the extent accrued on the Closing Balance Sheet. Notwithstanding the provisions of paragraphs (e), (f) and (g) immediately above, the term "Buyer's Damages" as applicable to said paragraphs shall not include any amounts due and payable to the Buyer or the Surviving Company from any governmental agency under the "SUPERB" or other government funded remediation program, so long as such amounts paid do not result in any continuing liability or obligation of the Buyer or the Surviving Companies based upon such payment.

Agreement to Indemnify by Seller. Subject to the terms and conditions of Sections 9.4 and 9.5 hereof, the Seller hereby agrees to indemnify and save the Buyer, the Surviving Companies Corporation and their respective shareholders, officers, directors, employees, successors and assigns (each, a "BUYER INDEMNITEE") harmless from and against, for and in respect of, any and all damages, losses, obligations, liabilities, demands, judgments, injuries, penalties, claims, actions or causes of action, encumbrances, costs, and expenses (including, without limitation, reasonable attorneys' fees and expert witness fees), suffered, sustained, incurred or required to be paid by any Buyer Indemnitee (collectively, "BUYER'S DAMAGES") arising out of, based upon, in connection with, or as a result of: (a) the untruth, inaccuracy or breach of any representation and warranty of the Seller contained in or made pursuant to this Agreement, including in any Schedule or certificate delivered hereunder or in connection herewith, excluding any breach of representation and warranty contained in Section 3.19; PROVIDED, HOWEVER, that with respect to the foregoing indemnification obligation of the Seller contained in this paragraph (a) and the indemnification obligation of the Seller contained in paragraph (b) immediately below, the Seller shall not have any indemnification obligation until (and only to the extent that) Buyer's Damages in respect of all claims for indemnity pursuant to this paragraph (a) and said paragraph (b) shall exceed a cumulative aggregate total of $150,000; (b) the untruth, inaccuracy or breach of any representation and warranty of the Seller contained in or made pursuant to Section 3.19, including in any Schedule or certificate delivered hereunder in connection therewith; (c) the breach or nonfulfillment of any covenant or agreement of the any Seller contained in this Agreement or in any other agreement, document or instrument delivered hereunder or pursuant hereto (including, without limitation, the Seller's obligation to pay taxes as provided in Schedule 5.5 hereto); (dc) any loss of life, injury to persons or property, or damage to natural resources caused by the actual, alleged, or threatened release, storage, transportation, treatment or generation, of Hazardous Materials generated, stored, used, disposed of, treated, handled or shipped by the Companies Corporation on or before the Closing Date; (ed) any cleanup of Hazardous Materials released, disposed of or discharged: (i) on, beneath or adjacent to the Real Property prior to or on the date of the Closing; or (ii) at any other location if such substances were generated, used, stored, treated, transported or released by the Companies Corporation prior to or on the Closing Date; PROVIDED, HOWEVER, such cleanup obligation shall but only be to the level required of an applicable governmental agency or as COMMERCIALLY reasonably extent necessary to satisfy the requirements of comply with applicable Environmental Laws or with any legal obligations to a lender to or prospective purchaser of the Real Property.third party; (fe) all known or unknown environmental liabilities and claims of the Companies Corporation or arising out of the ownership the Shares prior to the Closing, including, without limitation, the presence, release or threatened release of Hazardous Materials and any liabilities or obligations arising under any Environmental Law, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as amended;; or (gf) any and all costs of installing pollution control equipment or other equipment to bring any of the Real Property into compliance with any Environmental Law if such equipment is installed because any of the Real Property was not in compliance with any Environmental Laws as of the date of the Closing; or (h) all liabilities of any PROVIDED, HOWEVER, that with respect to the foregoing indemnification obligation of the Companies for Taxes arising out Seller contained in paragraphs (a) and (c) through (f) of this Section 9.2, the distribution of the Hartsville operations, except Seller shall not have any indemnification obligation until (and only to the extent accrued on the Closing Balance Sheet. Notwithstanding the provisions that) Buyer's Damages in respect of all claims for indemnity pursuant to all such paragraphs shall exceed a cumulative aggregate total of $125,000; PROVIDED, FURTHER, no claim for indemnification under paragraphs (e), c) through (f) and (g) immediately above, of this Section 9.2 shall be made after the term "Buyer's Damages" as applicable to said paragraphs shall not include any amounts due and payable to the Buyer or the Surviving Company from any governmental agency under the "SUPERB" or other government funded remediation program, so long as such amounts paid do not result in any continuing liability or obligation fifth anniversary of the Buyer or the Surviving Companies based upon such paymentClosing Date.

Agreement to Indemnify by Seller. (a) Subject to the terms conditions and conditions of Sections 9.4 and 9.5 hereofprovisions herein set forth, the Seller hereby agrees to indemnify indemnify, defend and save the Buyer, the Surviving Companies and their respective shareholders, officers, directors, employees, successors and assigns (each, a "BUYER INDEMNITEE") hold harmless Buyer from and against, for and in respect of, any and against all damages, losses, obligations, liabilities, demands, judgments, injuries, penalties, claims, actions or causes of action, encumbrancesassessments, costslosses, and expenses (includingdamages, without limitationliabilities, reasonable attorneys' fees costs and expert witness fees), suffered, sustained, incurred or required to be paid by any Buyer Indemnitee (collectively, "BUYER'S DAMAGES") arising out of, based upon, in connection with, or as a result of: (a) the untruth, inaccuracy or breach of any representation and warranty of the Seller contained in or made pursuant to this Agreement, including in any Schedule or certificate delivered hereunder or in connection herewith, excluding any breach of representation and warranty contained in Section 3.19; PROVIDED, HOWEVER, that with respect to the foregoing indemnification obligation of the Seller contained in this paragraph (a) and the indemnification obligation of the Seller contained in paragraph (b) immediately below, the Seller shall not have any indemnification obligation until (and only to the extent that) Buyer's Damages in respect of all claims for indemnity pursuant to this paragraph (a) and said paragraph (b) shall exceed a cumulative aggregate total of $150,000; (b) the untruth, inaccuracy or breach of any representation and warranty of the Seller contained in or made pursuant to Section 3.19, including in any Schedule or certificate delivered hereunder in connection therewith; (c) the breach or nonfulfillment of any covenant or agreement of the Seller contained in this Agreement or in any other agreement, document or instrument delivered hereunder or pursuant hereto; (d) any loss of life, injury to persons or property, or damage to natural resources caused by the actual, alleged, or threatened release, storage, transportation, treatment or generation, of Hazardous Materials generated, stored, used, disposed of, treated, handled or shipped by the Companies on or before the Closing Date; (e) any cleanup of Hazardous Materials released, disposed of or discharged: (i) on, beneath or adjacent to the Real Property prior to or on the date of the Closing; or (ii) at any other location if such substances were generated, used, stored, treated, transported or released by the Companies prior to or on the Closing Date; PROVIDED, HOWEVER, such cleanup obligation shall only be to the level required of an applicable governmental agency or as COMMERCIALLY reasonably necessary to satisfy the requirements of a lender to or prospective purchaser of the Real Property. (f) all known or unknown environmental liabilities and claims of the Companies or arising out of the ownership the Shares prior to the Closingexpenses, including, without limitation, the presence, release interest and penalties asserted against or threatened release of Hazardous Materials and any liabilities imposed upon or obligations arising under any Environmental Law, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act incurred by Buyer resulting from (CERCLA), as amended; (gi) any and all costs of installing pollution control equipment or other equipment to bring any of the Real Property into compliance with any Environmental Law if such equipment is installed because any of the Real Property was not in compliance with any Environmental Laws as of the date of the Closing; or (h) all liabilities breach by Seller of any then-surviving representation or warranty of the Companies for Taxes arising out of the distribution of the Hartsville operations, except to the extent accrued on the Closing Balance Sheet. Notwithstanding the provisions of paragraphs (e)Seller contained in this Agreement, (fii) and any breach by Seller of any covenant or agreement contained in this Agreement, (giii) immediately above, the term "Buyer's Damages" as applicable to said paragraphs shall not include any amounts due and payable to the Buyer or the Surviving Company from any governmental agency under the "SUPERB" or other government funded remediation program, so long as such amounts paid do not result in any continuing liability or obligation of Seller not assumed by Buyer pursuant to this Agreement, (iv) litigation instituted after the Closing Date that relates to conduct of the CATV Operations prior to the Closing Date, (v) any taxes payable (or that shall become payable) by Seller under this Agreement, (vi) or giving rise to a purchase price adjustment in Seller's favor pursuant to Section 2.03(a)(i) hereof; (vii) taxes relating to the CATV Operations by Seller that relate to the period prior to the Closing Date; and (viii) any copyright payments determined to be due and payable for any period (or portion thereof) prior to the Closing Date (collectively, "Buyer Damages"). (b) Notwithstanding anything set forth in Section 11.02(a), Buyer shall not be entitled to recover for and agrees not to assert any claim for Buyer Damages on account of any breach of any then-surviving representation, warranty, covenant or agreement of Seller contained in this Agreement, unless Buyer gives Seller, in writing, within the Surviving Companies based upon applicable respective period of survivability set forth in Section 11.01 hereof, if any, written notice in accordance with Section 11.03 specifying such paymentclaim of breach. (c) To establish the Indemnification Fund for Seller's satisfaction, in accordance with the terms of this Section 11.02, of any potential indemnification obligations hereunder, Buyer shall withhold the Indemnification Escrow Deposit (i.e., the aggregate sum of $250,000) from the Purchase Price and shall deliver that sum on the Closing Date by wire transfer in immediately available funds to the Escrow Agent to be held and disposed of in accordance with the terms of the Escrow Agreement attached hereto as Exhibit C. (d) Notwithstanding anything to the contrary set forth in this Agreement, Buyer's Damages with respect only to the breach of any representation or warranty set forth in this Agreement shall be limited to $1,400,000 in the aggregate. (e) Seller shall be liable for damages under Section 11.02(a)(i) and (ii) hereof only to the extent that the aggregate amount of such Buyer Damages exceeds $25,000, provided however, that when such aggregate amount is reached, Seller shall be liable under such sections commencing at the first dollar of such Buyer Damages that exceed $25,000. Notwithstanding the generality of the foregoing, the parties desire to specifically acknowledge that Seller's obligation to indemnify Buyer under Section 11.02(a)(viii) shall not be subject to the previous sentence.

Agreement to Indemnify by Seller. Subject to the terms and conditions of Sections 9.4 and 9.5 hereof, the Seller hereby agrees to indemnify and save the Buyer, the Surviving Companies Corporation and their respective shareholders, officers, directors, employees, successors and assigns (each, a "BUYER INDEMNITEE") harmless from and against, for and in respect of, any and all damages, losses, obligations, liabilities, demands, judgments, injuries, penalties, claims, actions or causes of action, encumbrances, costs, and expenses (including, without limitation, reasonable attorneys' fees and expert witness fees), suffered, sustained, incurred or required to be paid by any Buyer Indemnitee (collectively, "BUYER'S DAMAGES") arising out of, based upon, in connection with, or as a result of: (a) the untruth, inaccuracy or breach of any representation and warranty of the Seller contained in or made pursuant to this Agreement, including in any Schedule or certificate delivered hereunder or in connection herewith, excluding any breach of representation and warranty contained in Section 3.193.19 or in the certificate of the Seller (regarding Affiliate Payables and Excluded Indebtedness contemplated by Section 1.2(b)(1) hereof); PROVIDED, HOWEVER, that with respect to the foregoing indemnification obligation of the Seller contained in this paragraph (a) and the indemnification obligation of the Seller contained in paragraph (b) immediately below), the Seller shall not have any indemnification obligation until (and only to the extent that) Buyer's Damages in respect of all claims for indemnity pursuant to this paragraph (a) and said paragraph (b) shall exceed a cumulative aggregate total of $150,00050,000; (b) the untruth, inaccuracy or breach of any representation and warranty of the Seller contained in or made pursuant to Section 3.19, including in any Schedule or certificate delivered hereunder in connection therewith; (c) the Affiliate Payables and/or the Excluded Indebtedness; (d) the breach or nonfulfillment of any covenant or agreement of the Seller contained in this Agreement or in any other agreement, document or instrument delivered hereunder or pursuant hereto; (de) any loss of life, injury to persons or property, or damage to natural resources caused by the actual, alleged, or threatened release, storage, transportation, treatment or generation, of Hazardous Materials generated, stored, used, disposed of, treated, handled or shipped by the Companies Corporation on or before the Closing Date; (ef) any cleanup of Hazardous Materials released, disposed of or discharged: (i) on, beneath or adjacent to the Real Property prior to or on the date of the Closing; or (ii) at any other location if such substances were generated, used, stored, treated, transported or released by the Companies Corporation prior to or on the Closing Date; PROVIDED, HOWEVER, such cleanup obligation shall only be to the level required of an applicable governmental agency or as COMMERCIALLY reasonably necessary to satisfy the requirements of a lender to or prospective purchaser of the Real Property.; (fg) all known or unknown environmental liabilities and claims of the Companies Corporation or arising out of the ownership the Shares prior to the Closing, including, without limitation, the presence, release or threatened release of Hazardous Materials and any liabilities or obligations arising under any Environmental Law, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as amended;; or (gh) any and all costs of installing pollution control equipment or other equipment to bring any of the Real Property into compliance with any Environmental Law if such equipment is installed because any of the Real Property was not in compliance with any Environmental Laws as of the date of the Closing; or (h) all liabilities of any of the Companies for Taxes arising out of the distribution of the Hartsville operations, except . With respect to the extent accrued on the Closing Balance Sheet. Notwithstanding the provisions Seller's obligations to pay Buyer's Damages pursuant to Section 9.2 of paragraphs (e), (f) and (g) immediately abovethis Agreement, the term "Buyer's Damages" as applicable to said paragraphs Buyer shall be entitled (but shall not include any amounts due and payable be obligated) to the Buyer or the Surviving Company from any governmental agency make demand for payment under the "SUPERB" or other government funded remediation programEscrow Agreement and/or to postpone, so long offset and reduce the Contingent Purchase Price as such amounts paid do not result provided in any continuing liability or obligation of the Buyer or the Surviving Companies based upon such paymentSection 9.7 below.