Common use of BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS Clause in Contracts

BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The Seller and each of the Stockholders (collectively, the “Indemnifying Selling Parties”) shall, for a period commencing from the Closing Date and ending eighteen (18) months following the Closing Date (the “Indemnity Period”), (i) as to the Seller individually, and (ii) as to the Stockholders severally, not jointly, and on a 50/50 pro rata basis, indemnify the Parent and the Buyer (collectively, the “Indemnified Buying Parties”) in respect of, and hold each of them harmless against, any and all debts, obligations losses, liabilities, deficiencies, damages, fines, fees, penalties, interest obligations, expenses or costs (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise) (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (collectively, “Damages”) incurred or suffered by any of the Indemnified Buying Parties or any Affiliate thereof resulting from any material misrepresentation or material breach of any representation or warranty by, or failure to perform any material covenant or agreement of, any of the Indemnifying Selling Parties contained in this Agreement or the Company Certificate, to the extent caused by any act or omission of any of the Indemnifying Selling Parties or any circumstances within the reasonable control of the Company or the Stockholders. Any information, facts, or circumstances discovered by Parent or Buyer or its representatives or otherwise disclosed to Parent or Buyer in connection with any due diligence investigation or other examination of Company or DiscCo by Buyer, or delivery of information to Parent or Buyer or its representatives by any of the Indemnifying Selling Parties, that may have been made on or before the Closing Date shall be deemed to be a disclosure by the Indemnifying Selling Parties pursuant to this Agreement such that the Indemnified Buying Parties shall not be entitled to indemnification hereunder. Notwithstanding the above, the foregoing eighteen (18) month Indemnity Period shall be subject to the provisions of Section 6.4 below.

BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The Seller and Subject at all times to the limitations provided herein, each of the Stockholders Parent and the Buyer (collectively, the “Indemnifying Selling Buying Parties”) shall, for a period commencing from the Closing Date and ending eighteen (18) months following from the Closing Date (Date, indemnify each of the “Indemnity Period”), (i) as to the Seller individually, Company and (ii) as to the Stockholders severally, not jointly, and on a 50/50 pro rata basis, indemnify the Parent and the Buyer (collectively, the “Indemnified Buying Selling Parties”) in respect of, and hold each of them harmless against, any and all debts, obligations losses, liabilities, deficiencies, damages, fines, fees, penalties, interest obligations, expenses or costs (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise) (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (collectively, “Damages”) Damages incurred or suffered by any or all of the Indemnified Buying Selling Parties or any Affiliate thereof resulting from any material misrepresentation or material breach of any representation or warranty by, or failure to perform any material covenant or agreement of, any of the Indemnifying Selling Buying Parties contained in this Agreement or the Company DSH Certificate, to the extent caused by any act or omission of any of the Indemnifying Selling Buying Parties or any circumstances within the reasonable control of the Company or the StockholdersIndemnifying Buying Parties. Any information, facts, or circumstances discovered by Parent or Buyer Indemnified Selling Parties or its representatives or otherwise disclosed in writing to Parent or Buyer in connection with any due diligence investigation or other examination of Company or DiscCo such Indemnified Selling Parties by Buyer, or delivery of information to Parent or Buyer or its representatives by any of the Indemnifying Selling Partiesrepresentatives, that may have been made on or before the Closing Date shall be deemed to be a disclosure by the Indemnifying Selling Buying Parties pursuant to this Agreement such that the Indemnified Buying Selling Parties shall not be entitled to indemnification hereunder. Notwithstanding the above, the foregoing eighteen (18) month Indemnity Period shall be subject to the provisions of Section 6.4 below.

BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The Seller and Subject at all times to the limitations provided herein, each of the Stockholders Parent and the Buyer (collectively, the “Indemnifying Selling Buying 50 Parties”) shall, for a period commencing from the Closing Date and ending eighteen (18) months following from the Closing Date (Date, indemnify each of the “Indemnity Period”), (i) as to the Seller individually, Company and (ii) as to the Stockholders severally, not jointly, and on a 50/50 pro rata basis, indemnify the Parent and the Buyer (collectively, the “Indemnified Buying Selling Parties”) in respect of, and hold each of them harmless against, any and all debts, obligations losses, liabilities, deficiencies, damages, fines, fees, penalties, interest obligations, expenses or costs (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise) (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (collectively, “Damages”) Damages incurred or suffered by any or all of the Indemnified Buying Selling Parties or any Affiliate thereof resulting from any material misrepresentation or material breach of any representation or warranty by, or failure to perform any material covenant or agreement of, any of the Indemnifying Selling Buying Parties contained in this Agreement or the Company DSH Certificate, to the extent caused by any act or omission of any of the Indemnifying Selling Buying Parties or any circumstances within the reasonable control of the Company or the StockholdersIndemnifying Buying Parties. Any information, facts, or circumstances discovered by Parent or Buyer Indemnified Selling Parties or its representatives or otherwise disclosed in writing to Parent or Buyer in connection with any due diligence investigation or other examination of Company or DiscCo such Indemnified Selling Parties by Buyer, or delivery of information to Parent or Buyer or its representatives by any of the Indemnifying Selling Partiesrepresentatives, that may have been made on or before the Closing Date shall be deemed to be a disclosure by the Indemnifying Selling Buying Parties pursuant to this Agreement such that the Indemnified Buying Selling Parties shall not be entitled to indemnification hereunder. Notwithstanding the above, the foregoing eighteen (18) month Indemnity Period shall be subject to the provisions of Section 6.4 below.

BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The Seller and each Each --------------------------------------------------- Stockholder, severally based on his pro rata ownership of the Stockholders Company at Closing as set forth on Exhibit A hereof, after the Closing, agrees to defend and indemnify WMT and its affiliates, directors, officers and stockholders, and its successors and assigns (collectively, the “Indemnifying Selling Parties”) shall, for a period commencing from the Closing Date and ending eighteen (18) months following the Closing Date (the “Indemnity Period”"WMT Indemnitees"), (i) as to the Seller individually, and (ii) as to the Stockholders severally, not jointly, and on a 50/50 pro rata basis, indemnify the Parent and the Buyer (collectively, the “Indemnified Buying Parties”) in respect ofagainst, and hold each of them harmless againstfrom, any and all debts, obligations losses, liabilities, deficienciestaxes, claims, suits, proceedings, demands, judgments, damages, finesexpenses and costs, including, without limitation, reasonable counsel fees, penalties, interest obligations, expenses or costs (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise) (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses incurred in the investigation, defense or settlement of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) any claims (collectively, “the "Indemnifiable Damages”") incurred which any such indemnified person may suffer or suffered incur by reason of the inaccuracy of any of the Indemnified Buying Parties representations or warranties (after giving effect to any Affiliate thereof resulting from any material misrepresentation supplemental disclosures as permitted in Section 6.1(h)), or material breach of any representation or warranty bycovenants to be performed after the Closing Date, or failure to perform any material covenant or agreement of, any of the Indemnifying Selling Parties Company or the Stockholders contained in this Agreement or any documents, certificate or agreement delivered pursuant hereto. Notwithstanding the Company Certificateforegoing, to the extent caused by any act or omission of any of the Indemnifying Selling Parties or any circumstances within the reasonable control of the Company or the Stockholders. Any information, facts, or circumstances discovered by Parent or Buyer or its representatives or otherwise disclosed to Parent or Buyer in connection with any due diligence investigation or other examination of Company or DiscCo by Buyer, or delivery of information to Parent or Buyer or its representatives by any of the Indemnifying Selling Parties, that may have been made on or before the Closing Date shall be deemed to be a disclosure by the Indemnifying Selling Parties pursuant to this Agreement such that the Indemnified Buying Parties WMT shall not be entitled to indemnification hereunderIndemnifiable Damages if (i) WMT had actual knowledge that such representations or warranties were untrue or inaccurate or that covenants had been breached in any respect on the Closing Date and (ii) the Stockholders shall have sustained the burden of proving that WMT had such actual knowledge, which burden shall only be sustained by the Stockholders' production of a written document or documents created by WMT and reviewed by the President and Chief Executive Officer and by the Chief Financial Officer of WMT demonstrating that WMT had such actual knowledge hereunder in any event. Notwithstanding Section 9.3(e) below (except with respect to Section 9.3(b) which shall limit the aboveparties' remedies hereunder in any event), nothing in this Section 9.1(a) shall limit in any way WMT's remedies (x) in the foregoing eighteen event of breach by the Company or the Stockholders of any of their covenants or agreements hereunder to be performed or complied with after the Closing or (18y) month Indemnity Period shall be subject to for any claim made under Rule 10b-5 of the provisions of Section 6.4 below1934 Act.