Buyer Losses. Seller is liable for all direct, incidental and consequential damages, losses, costs, and expenses (including attorneys’ fees) incurred by Buyer resulting from Seller’s failure to deliver conforming and non-defective Products or to comply with the shipping, delivery or other requirements of Buyer, even if Seller has cured the failure (collectively, “Buyer Losses”). Buyer Losses include, but are not limited to, the following: (i) any amounts charged by Buyer’s customer(s); (ii) all costs of containment, sorting, repair, replacement, cure, cover, or any other costs incurred by Buyer, in such manner and in such amount as reasonably determined by Buyer; and/or (iii) all costs of any recall campaign, corrective service action, or other voluntary or involuntary action in which Buyer or any customer participates in connection with the inclusion of Products in goods sold by Buyer.
Buyer Losses. 11.3 CERCLA............................................................................. 3.15
Buyer Losses. 11.2 Cap .................. 1.5(b)
Buyer Losses. Section 12.2(f) Claims Period..................................................................Section 12.5 Closing........................................................................Section 9.1
Buyer Losses. Seller agrees to indemnify, defend and hold harmless Buyer and its members, managers, officers, employees, representatives and agents from, against and in respect of any and all Losses suffered, sustained, incurred or required to be paid by any of them solely by reason of (a) any representation or warranty made by Seller in this Agreement being untrue or incorrect in any material respect; (b) any failure by Seller to observe or perform their covenants and agreements set forth in this Agreement; (c) any liability of Seller to the extent it is not an Assumed Liability; (d) any failure of Seller to have good title to the Acquired Assets, free and clear of all Liens other than Permitted Liens, or (e) any matter listed or required to be listed on Schedule 4.11. Asset Purchase Agreement-29-
Buyer Losses. Seller and Parent jointly and severally agree to indemnify and hold harmless Buyer and its respective members, managers, officers, employees, representatives, agents and attorneys (“Buyer Indemnified Parties”) from, against and in respect of any and all Losses (as defined below) suffered, sustained, incurred or required to be paid by any of them by reason of (i) any representation or warranty made by Seller or Parent in or pursuant to this Agreement being untrue or incorrect in any respect; (ii) any failure by Seller or Parent to observe or perform their covenants and agreements set forth in this Agreement; (iii) any liability relating to or involving Seller, the Acquired Assets or the Business, in each case, that accrued prior to the Effective Time to the extent it is not an Assumed Liability; (iv) 65% of all Taxes of B&B Roadway for all periods prior to the Effective Time (including, without limitation, the portion of any Tax period that begins on or before the Closing Date and ends after the Closing Date) and all Taxes imposed on or asserted against the properties, income or operations of Seller, the Acquired Assets or the Business for all periods prior to the Effective Time (including, without limitation, the portion of any Tax period that begins on or before the Closing Date and ends after the Closing Date) and any Tax liability of Seller or Parent arising in connection with the transactions contemplated hereby; (v) any failure of Seller to have good and marketable title to the Acquired Assets free and clear of all Liens other than Permitted Liens; or (vi) any matter listed or required to be listed on Schedule 2.13.
Buyer Losses. The Company and each Shareholder each make the following covenants: At the Closing Date, the Shareholders shall be deemed to have received as part of the consideration, and to have deposited with the Escrow Holder under the Escrow Agreement, the Escrowed Funds. The Escrowed Funds shall be available for recovery for Buyer Losses, including, but not limited to, those resulting from
(a) subject to the provisions of Section 6.6, any representation or warranty made by the Company and/or the Shareholders in or pursuant to this Agreement (including, without limitation, the representations and warranties contained in any schedule or exhibit to this Agreement or certificate delivered pursuant hereto) being untrue or incorrect in any respect,
(b) the termination of or withdrawal by the Company or any Group Member from any employee pension benefit plan, as defined in Section 3(2)(A) of ERISA that is maintained pursuant to a collective bargaining agreement under which more than one employer makes contributions and to which the Company or any Group Member is then making or accruing an obligation to make contributions or has within the preceding four (4) plan years made contributions,
(c) the items described in Schedule 4.9 or Schedule 4.12 hereof, except in any instance and to the extent Buyer Losses result from the gross negligence or willful misconduct of the Buyer,
(d) any failure by the Company and/or the Shareholders to observe or to perform their covenants and agreements set forth in this Agreement or in any other agreement or document executed by it in connection with the transactions contemplated hereby, including without limitation the Noncompetition Agreement and Nondisclosure Agreement; and
(e) subject to the provisions of Section 11.7, any liability arising from or based upon the engagement by the Company or the Shareholders of any broker or agent, whether or not disclosed on Schedule 11.7 hereto.
Buyer Losses
